Like The Hub?
Join our community.
Join

Howard Anglin: The faulty Reform Act replaces the will of Parliament with the whims of caucus

Commentary

About the best thing that can be said of the 2014 Reform Act is that it might have been worse.

As originally proposed, the act would have required every federal party to adopt its provisions for removing a party leader and selecting an interim leader. This would have been an unprecedented state intrusion into the operations of what are, at heart, still private bodies.

We regulate political parties lightly in Canada, and with good reason. They are self-governing civil society organizations, largely run by volunteers who have come together to participate in our political system. With the exception of laws to ensure reasonably fair elections conducted under uniform rules, their inner workings are for them to organize as it suits them.

If the Green Party wants to act like a campus activist club, making decisions by consensus with a leader who isn’t really the leader, it can do that. If another party wants to engage its grassroots by using a one member-one-vote system to choose or remove a leader, then have at it. It’s none of the government’s business.

Fortunately, the Reform Act was itself reformed before it was adopted. In its final form, the act leaves it up to each party’s caucus to decide for itself at the beginning of each session of Parliament whether it wants to adopt some or all the act’s rules, including a provision that allows 20 percent of a party’s sitting MPs to initiate a leadership review in which just 50 percent plus one caucus votes are enough to replace the party leader.

But making the choice optional still goes too far. It asks the caucus to make a decision that should belong to the party, of which the elected members are just one part. Elsewhere on this site, Ken Boessenkool has explained how the act’s fundamental error is that it mistakes the caucus for the party, or rather it fails to account for the difference. He’s right, and the point can’t be made enough. There may be an important legal distinction between the partisan operations of the party and the party caucus, but that does not mean they are unrelated or can be treated as though they were. They are inextricable both in theory and in practice.

One of the three clauses of the Reform Act’s preamble notes that “in Canada, the executive branch of government is accountable to the legislative branch in accordance with the concept of responsible government, which is the foundation of the Westminster system of parliamentary democracy.” This is a true and accurate statement, but quite what it is doing introducing an act that deals with internal party procedures beats me.

There is no “executive” in a party caucus, even in the caucus of the governing party. In the Liberal party’s weekly caucus meetings, Mr. Trudeau and his cabinet appear not in their roles as ministers of the government but as Liberal members of Parliament. And there is obviously no hint of the executive in the opposition parties.

The preamble’s second clause muddles matters further. By stating that “the leadership of political parties must maintain the confidence of their caucuses,” the act implicitly introduces the formal idea of “confidence” into the informal business of party caucuses.

“Confidence” in the Westminster system is a term of art. It is the key to what Bagehot called the “efficient secret” of our parliamentary system, which is that the government is embedded within the legislature, where it is subject to constant scrutiny and continues to be accountable to the people through their representatives between elections.

The statements in the act’s preamble are fine and true, but they are irrelevant. And they are undercut by the provisions of the act itself, which follow like a thudding non sequitur. By confusing the colloquial notion of caucus’s confidence in the party leader with the formal mechanism of the “confidence of the House,” the Reform Act encourages caucuses to move away from the most important feature of Responsible Government.

To illustrate the point, imagine the Liberal caucus adopts the Reform Act’s leadership review and replacement provisions at its first meeting. It would mean that just 32 Liberal MPs could initiate a review of the prime minister, and just 81 MPs—less than a quarter of all MPs in the House—could oust a sitting prime minister. The whims of a caucus replace the will of Parliament.

You might object that this is all beside the point—that, in reality, a prime minister who has lost the support of a clear majority of his caucus will resign anyway, and that the same goes for the leader of any party. I agree, but that is not a point in favour of the Reform Act. At best it shows that its leadership provisions are superfluous, and superfluous isn’t the same as harmless.

Vesting so much power in such a small subsection of a party poses special problems for a party in need of political renewal

Boessenkool rightly points out the potential instability introduced by requiring only 20 percent of caucus to initiate a leadership review in which a bare majority can remove a party leader. It invites the sort of chaos that afflicted Australian politics a decade ago, when leadership “spills” briefly overtook footy as the national sport Down Under, and sober considerations of the good of the party, let alone the good of the country, were eclipsed by personal vendettas and factional revenge.

Even if Canadian political parties manage to avoid Australia’s civil wars—which only ended when the Australian Labor party raised the threshold for removing a leader to 75 percent of caucus (60 percent in opposition) and the Liberals raised their threshold to two-thirds of caucus—vesting so much power in such a small subsection of a party poses special problems for a party in need of political renewal, as the official opposition invariably is.

Take the current Conservative Party of Canada, which has now lost three elections in a row and needs to find a way to expand beyond its base of about 100-120 seats. I have no doubt that each of the 119 members in the CPC caucus room would rather be part of a majority and that they all have ideas about how to broaden the party’s appeal, but their views on how to do that will inevitably reflect the perspectives of their ridings and regions.

The current caucus represents, by definition, the party’s most winnable ridings. It may include members from a few swing ridings but, again by definition, it doesn’t represent any of the 51 additional ridings the party must win to form government. It is more rural, more western, and, yes, less diverse than the country or the suburban ridings it needs to win next time. None of that is the fault of the members who worked hard to be elected, but they should consider seriously the missing voices of those 51 lost seats before they exercise the power to decide for themselves the future leadership of the party.

Having disparaged the Reform Act, I would like to end by praising its author. Michael Chong is one of the most thoughtful and serious politicians we have. His desire to reinvigorate Parliament by encouraging members to exercise more independence from party leadership is, at least in principle, a worthy cause. As happens so often in politics, however, it’s not the noble ends that are the problem, it’s the faulty means.

Brian Bird: Pandemic or not, don’t cheapen the Charter and the society it sustains

Commentary

The vaccine mandate chapter of the pandemic has fully arrived in Canada. What began as a trickle in late summer is fast becoming a flood of requirements for Canadians to be vaccinated in order to participate in various activities and sectors of society.

It is troubling to witness governments barely mention the Charter of Rights and Freedoms when they announce these mandates, if they mention it at all. It is also troubling that this behaviour is not new. Governments have largely avoided Charter talk during the pandemic, seemingly for optics and to avoid problems of public perception.

In fairness, this approach is understandably tempting. Lockdowns, quarantines, and other public health measures collectively breach — or at least arguably breach — an assortment of Charter guarantees: freedom of peaceful assembly, mobility rights, religious freedom, and respect for liberty and security of the person according to principles of fundamental justice come quickly to mind.

Strong cases could be made that some of these measures not only breach rights and freedoms in the Charter but lack sufficient justification for doing so. Such measures, in other words, are unconstitutional and therefore illegal.

The hotel quarantine for persons entering Canada by plane was widely criticized for overreach. The ban on worship for several months in British Columbia while many other activities continued in-person was never credibly explained. And using curfews to fight COVID-19, as Quebec did earlier this year, may be far less effective than first meets the eye. Does the virus only come out at certain hours?

Without taking anything away from the tremendous success of the vaccines or from the imperative of getting vaccinated, a strong case could also be made that some of the vaccine mandates in Canada have features which render them unconstitutional as well.

How is it justifiable to require public servants who will not work in the office for the foreseeable future — perhaps not until well into next year — to take an injection or effectively lose their job?

The federal government has announced that its employees must be vaccinated by October 29th. If an employee is not vaccinated, they will be placed on unpaid administrative leave. This mandate applies even if the employee is working from home. How is it justifiable to require public servants who will not work in the office for the foreseeable future — perhaps not until well into next year — to take an injection or effectively lose their job?

As for vaccine mandates for activities such as dining out, a glaring constitutional defect exists if, as is the case in British Columbia, they do not accommodate individuals who cannot be vaccinated for legitimate medical reasons. This segment of the population is small, but that statistic is legally irrelevant. In fact, the negligible number of individuals who would qualify for this exemption makes the refusal to grant it all the more baffling. Even if no one were eligible for this exemption today, it should still be on the books in case someone develops a medical condition which renders them ineligible for vaccination.

Canada is one of the most vaccinated countries in the world, an achievement that will only be sustained once younger Canadians can get the shot. We firmly subscribe to the principle that medical interventions must not be coerced, even indirectly. And we normally do not require vaccination where its necessity is questionable, as seems to be the case for the roughly 1.7 million Canadians who have at least some degree of natural immunity from COVID-19 after recovering from the virus.

With these factors in mind, the legal justification for the patently flawed aspects of the vaccine mandates is tenuous at best. Bluntly put, many vaccine mandates are ripe for constitutional challenge on account of enabling unjust discrimination as well as for denying liberty and security of the person in ways that are overbroad, arbitrary, and unduly coercive.

So far, courts have been deferential when evaluating the constitutionality of state action taken in response to COVID-19. But this posture will not last forever. Telling the court that we are living through a global pandemic does not have the same purchase today as it did nineteen months ago. We have learned a lot in that timespan, and a lot has changed.

Many believe that vaccine mandates are needed to achieve herd immunity or to tackle dire pandemic conditions in certain provinces. To these points, I would say – in keeping with what Gerard Kennedy has written in these pages – that there is a legal mechanism which enables governments to adopt vaccine mandates in a manner that is far more respectful of our supreme law than the current approach.

Governments should use the notwithstanding clause in the Charter to overcome questions about whether these mandates infringe certain Charter rights and freedoms. The imposition of drastic, extraordinary measures that a government believes are demanded by the common good is precisely the sort of rare scenario that the notwithstanding clause is meant to handle.

Acting as if vaccine mandates — as well as other pandemic measures we have endured — are mundane curtailments of fundamental rights is not merely false. It also cheapens these rights, setting a dangerous precedent for their future.

After nearly a year since the worldwide vaccine rollout began, what we have been told about the vaccines from day one has proven to be true. The vaccines are indeed safe and effective. They have even exceeded expectations, holding up against variants that did not exist when they were being developed. With each passing day, almost all the reasons that are cited by those who refuse to take the vaccine lose further traction. Frankly, and with all due respect, many of these reasons were absurd from the start.

But frustrating behaviour by some citizens amid very challenging circumstances does not entitle governments to bulldoze through our supreme law or the fundamental commitments that guard us from becoming a radically different kind of society.

This law and those commitments are not window dressing when things are fine and optional when times are tough. They are always foundational, and always mandatory. And, truth be told, it’s in the difficult moments — in times like the present — that we need the defining features of our society the most.