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John Bryden
Since adoption of the Charter of Rights in 1982 the primacy of Parliament
in the Canadian constitutional framework has been challenged, particularly
as the result of Charter decisions by the courts. This article argues that
legislators must try to ensure that public confidence in the integrity
of the parliamentary process is not undermined.
Let me begin with a common misconception about the relationship between
Parliament and the courts. The Supreme Court of Canada was created by an
act of Parliament in 1875. The Constitution of Canada makes bare mention
of the courts. The Supreme Court that we know was created by Members of
Parliament debating in the House of Commons, voting and passing the necessary
legislation.
In a Westminster parliamentary system like ours Parliament, which consists
of the House of Commons, Senate and the Crown, is supreme. This should
not be confused with the American democratic system where the executive
– the President and his ministers – the legislature and the judiciary are
defined in the U.S. Constitution as separate and equal entities with an
intricate set of checks and balances to ensure that one does not dominate
the others.
In my opinion the primary duty of a parliamentarian is to defend Parliament.
In our democracy everything flows from Parliament. I do not mean to belittle
Canada’s judiciary or its executive – the Prime Minister and his ministers
– but in Canada both of them obtain their legitimacy from Parliament. They
are instruments of the Canadian democracy, the instruments of the democratic
institution. Consequently, if the public loses confidence in Parliament
everything else fails. That is why I was never in agreement with Preston
Manning in his early years when he would use question period to attack
Parliament. It took him a long time to realize that the purpose of question
period is to attack the government, not Parliament.
I would like to mention a few laws that are very important in determining
if Members of Parliament are going to be successful in maintaining public
confidence in the institution. The first is the Access to Information Act.
It enables parliamentarians to hold government to account by directly or
indirectly obtaining information beyond what can be elicited in question
period. The House is a partisan place and it is fairly easy for ministers
to be less than candid. It is less easy when the questioning is based on
evidence.
The Access to Information Act, however, is almost as old as the Charter
and in need of updating. I am pleased to see there are proposed amendments
presently before the House. One suggested change would bring the financial
affairs of parliamentarians under the Act. This increased transparency
will be tremendously helpful in improving respect for Parliament.
Another positive development was the election expense legislation adopted
at the end of the last parliament. Anyone who had been in office for ten
years or more, in government or opposition, knew that there was something
wrong when certain members could raise vast sums of money for their election
campaigns. There was no evidence of corruption or criminality but we needed
to limit the ability of lobbyists and others to give large donations to
individual politicians. I was tremendously supportive of the legislation
that was adopted.
Everyone in this country watches American television and the message they
see is that politicians are influenced by money. We must do what we can
to combat this impression.
There are a couple of other areas that can go a long way toward helping
parliamentarians maintain the confidence of Canadians. The Parliament of
Canada Act gives standing committees the power to call witnesses and to
compel them to speak truthfully. This is an important power but if it is
abused – by not giving witnesses certain rights against self-incrimination,
for example – Parliament will lose credibility. People will come to the
conclusion that Parliament is not sensitive to the rights of individuals.
The Security of Information Act, adopted in the aftermath of the attacks
of September 11, poses a very different problem. It led to a disturbing
proposal whereby private members of parliament – backbenchers – are to
be recruited by the executive to serve on ad hoc committees that can review
issues of national security and have access to current secret operational
information. Those MPs who are given this access are to submit to the restrictions
on disclosure defined by the Act or face its penalties. The individual
charged with enforcement would be the Clerk of the Privy Council who is
an officer of government not of Parliament. In my view this compromises
the independence of MPs and ultimately Parliament itself.
The responsibilities of Canada’s executive, legislatures and the judiciary
are spelled out fairly clearly by law or precedence. I have always thought
of backbenchers, however, as a kind of fourth order of governance and that
anything that restricts their ability freely to speak or freely to act
is dangerous to the health of our democracy.
That is why I was concerned to see so many additional privy councillors
created when the Martin government decided to make all parliamentary secretaries
members of the Privy Council. This means fewer free and independent voices
in the House of Commons. It enlarges the executive at the expense of Parliament.
Let me conclude by referring to the ideas of two individuals who were very
important in the development of our parliamentary form of government. I
am very much a believer in the ideas of Edmund Burke who in the late 18th
century wrote that an elected member of parliament’s primary responsibility
is to use his best judgment in making decision. I believe that within the
limitations we all have as individuals, all MPs must strive to act correctly
not just for their parties, not just for their constituents, but first
and ultimately for all Canadians.
The political party process is very helpful in this respect. If everyone
acted as an independent member in the House of Commons there would be in
chaos. I am strong supporter of the party system and the principle of party
discipline. I also believe, however, that the MP’s first responsibility
is to his own conscience and this must outweigh party loyalty if a serious
conflict arises.
John Stuart Mill, another of the great minds who influenced the development
of Westminster-style parliamentary institutions, warned against the “tyranny
of the majority.” This quotation from On Liberty is often taken out of
context and used to justify the proposition that the courts should have
a lawmaking role in the interests of minorities. But Mill was talking
about the tyranny of public opinion in an age still reeling in the aftermath
of the French Revolution. He went on to say that he supports absolutely
the power of Parliament to act in the name of everyone provided that all
minorities have reasonable opportunity to be heard.
In Canada protecting the interests of minorities was clearly intended to
be the task of Parliament. The Senate, in particular, was designed to operate
as a check on the excesses of the elected representatives. That is why,
surely, it was decided that senators should be selected by means other
than by general election. A constitutionally independent judiciary is needed
in the United States precisely because its upper house is elected; American
senators are subject to the same public pressures as congressmen. Canadian
senators are not.
Let us remember that our system, which is not the American system, is focused
on Parliament. There are other voices. We have a free press. We have the
courts. We have the right to assemble and speak. But in the end, in our
form of democracy, it is the elected institutions that make the decisions.
The federal Parliament, in concert with all the provincial parliaments,
can even change the Constitution.
With so much at stake, and until and unless the Constitution is altered,
we must do everything we can to ensure that confidence in Parliament is
maintained.
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