Is There A Legal Case Against David Emerson: Part Two

Section 3 of the Charter elucidates the democratic rights of Canadian citizens. On the face of it, section 3 grants citizens a bare right to vote and to run in an election for public office. But Charter analysis requires looking beyond the mere words of the section. In the words of McLachlin, C.J.B.C. S.C. (as she then was), “[m]ore is intended [in the right to vote] than the bare right to place a ballot in a box”: Dixon v. British Columbia (A.G.), [1989] 4 W.W.R 393, at p. 403. As Dickson J. (as he then was) wrote in R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295 at p. 344: “[T]he interpretation [of a section of the Charter] should be…. a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.” That is, Charter interpretation of a section requires a broad, generous and purposive approach. The leading case that elucidates citizen’s democratic rights is the November 2003 case of Miguel Figueroa v. Attorney General of Canada, SCC File No: 28194. In Figueroa, supra., the Supreme Court said: • “…the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to “effective representation”. Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one’s grievances and concerns to the attention of one’s government representative.” • “But the right to effective representation contemplates more than the right to an effective representative in Parliament or a legislative assembly. …Clearly, in a democratic society, the right to vote as expressed in s. 3 must be given a content commensurate with those values embodied in a democratic state.” • “The purpose of s. 3 of the Charter is, then, to grant every citizen of this country the right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate. (Emphasis added to their by this author) • “The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens…. Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions.” • “The rights to vote and to be a candidate do not fit the classic model of a negative individual right to be free from government interference. Citizens cannot exercise their s. 3 rights on their own, without the state’s involvement. Rather, s. 3 imposes a positive obligation on the government to set up an electoral system which, in turn, provides for democratic government in accordance with the choices of Canadian voters.” With respect to the matters in Vancouver-Kingsway, it is a fact that 82% of the constituents did not vote for the Conservative party. It is also a fact that the ballot upon which voters cast their votes stipulated both David Emerson’s name and his Liberal Party affiliation. Emerson campaigned as a Liberal, put up lawn signs announcing his Liberal Party affiliation, attacked his Conservative party opponent in the riding; and based on his personal qualifications and Liberal party affiliation, the citizens of Vancouver-Kingsway elected him. Then, a few days later, well before Parliament is called in session – David Emerson ‘crossed’ over to become a Conservative party Cabinet minister. Based on my understanding of s. 3 Charter rights, and the publicly available evidence respecting the context and timing of the “crossing”, it is my opinion that the post-election actions of David Emerson, and perhaps, the Prime Minister as well, nullified the s. 3 Charter rights of the citizens of Vancouver-Kingsway to play a meaningful role in the election of their elected representative, and it further denied them the right to “effective representation” by the Party of their choice (Liberal) and their “party-affiliated” representative – “David Emerson qua a Liberal”. I also assert that the actions of David Emerson and the Prime Minister are neither fair nor equitable to the citizens of Vancouver-Kingsway, who essentially had their s. 3 right to play a meaningful role in the election of their representative stripped away. Given that Figueroa suggests that s. 3 imposes a positive obligation on government to set up an electoral system which will provide for democratic government in accordance with the choices of Canadian voters, one can well conclude that in this context, the government, parliament, Elections Canada, and Minister of the Crown, have clearly failed to provide that positive obligation. Unlike other citizens in other constituencies of Canada who got the “party-affiliated representative” they elected, the citizens of Vancouver-Kingsway have been denied that basic right. Cannot it then be asserted that said denial is injurious to their “political equality” rights and basic dignity as citizens, a dignity protected by the s. 15 Equality Rights provision of the Charter. What needs to be asked is why does the Attorney-General of Canada not act in an independent manner to seek clarification from the Supreme Court respecting this matter? Surely the Attorney-General of Canada has a responsibility not just to protect the ‘tradition’ of parliamentarians but also to ensure that the democratic lawful rights of citizens are not violated, and as importantly that the integrity of our system of representative democracy is not thrown into disrepute. While some and perhaps many will disagree with my assertions, these submissions are neither frivolous nor vexatious. They are made with serious intent by reference to constitutional law, and they point to matters that ought to be clarified by the courts of this land. Citizens, parliamentarians, political parties of all stripes and persuasions deserve to know just where the lawful and clear line ought to be drawn between ‘parliamentarian rights’ and ‘citizen’ democratic rights. In this context, at this time in history, it is suggested that it is incumbent upon the Attorney-General of Canada to act to resolve this matter. Action might take the form of the appointment of a Special Prosecutor to investigate, a judicial inquiry, a reference question to the Supreme Court. If none of these occur, then if falls directly to citizens to rise to the challenge of defending their democratic rights in the courts and pressing on with even more ‘political heat’ as they see fit. Surely, if the Emerson matter is allowed to stand, the precedent will stand, tradition in favour of parliamentarians will be further consolidated, and the democratic rights of citizens even further eroded. Is this the Canada we contemplate, or do we not aspire to a better ‘model’ of democracy? If the upshot of this ‘imbroglio’ is that David Emerson will continue to sit as an MP – then I ask you and all Canadians – why bother to vote? Why bother to vote when just a few days after a general election your choice as a citizen can be completely ‘nullified’ by tradition, by parliamentary privilege, by the prerogatives of the Prime Minister’s office, rather then being upheld by law? Finally, to those who assert, oh, Mr. Emerson is a competent, intelligent man, we should move on and ‘get a life’, I say that is a completely irrelevant and arrogant assertion. In a society that purports to be a representative democracy nothing can be more important than the very integrity of that system of governance and the constitutional right of citizens to participate in an election in a meaningful way. For these reasons citizens in all constituencies need to inform themselves of their legal rights and Stand Up for Democracy, indeed, Stand Up in Solidarity with the Citizens of Vancouver-Kingsway. Peter Dimitrov Barrister & Solicitor 1200-207 W. Hastings St. Vancouver, BC V6B 1H7 Tel: 604-684-4446 [Proofreader's note: this article was edited for spelling and typos on February 22, 2006]