Part Two: Is there a Case Against Emerson
Date: Monday, February 20 2006
Topic: Canadian Politics
Herein is a copy of a letter which I sent to Rex Murphy of Cross-Country Check-up which further eludicates my thinking. In addition to what I told Rex, I believe that it is a legal right of every Canadian to defend their democratic rights under s. 3 of the Charter; it is not a right that attaches only to the citizens residing within Vancouver-Kingsway.
Haven't the time to call in --so email is going to have to do.
I don't think you have framed the issue correctly. I don't think the question ought to be: "When is it acceptable for a MP to switch sides?" Rather I think we need to regard other historical issues and consider this matter by reference to the laws of Canada.
1. In the United Kingdom where parliament is supreme "tradition' gives parliamentarians the right, indeed the privilege to switch sides as they please without any restrictions whatsoever.
2. Parliamentarians in Canada seem to think that they can do the same. They argue that 'tradition' - both in the UK and Canada gives them the unfettered right to do as they please. The reality is, however, that in Canada - 'parliament is not supreme', and neither is tradition, the constitution is supreme - it is the highest law in the land.
This traditional right of Canadian parliamentarians to cross the floor has never been challenged by citizens using the Charter of Rights & Freedoms. The Emerson 'crossing' seems to me a unique historical opportunity for citizens to seek, through the courts, clarification of their rights vis-à-vis parliamentarians, and to seek a balancing of those competing 'rights'.
Section 3 of the Canadian Charter of Rights & Freedoms elucidates the democratic rights of Canadian citizens. In the FIGUEROA case, the Supreme Court of Canada said that s. 3 rights do not just provide a right to vote and a right to run for elected office. The Supreme Court has said that Charter analysis requires looking beyond the words of section 3 and adopting a broad and purposive approach.
The Supreme Court has said:
“The purpose of s. 3 of the Charter, is ... 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. (Underlining by the SCC.) The central focus of section 3 is to give each citizen a right to participate in the electoral process in a meaningful way.”
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 that David Emerson was a candidate for the Liberal Party. Emerson campaigned as a Liberal, people participated in his campaign, made donations to his campaign and ultimately voted for him and the Liberal Party based on those representations.
It is my legal opinion, therefore, that the actions of David Emerson, and possibly even the Prime Minister himself, following so soon after the national election, before even Parliament is called in session, are a breach of citizen’s section 3 Democracy rights, and possibly other rights as well - particularly 'political liberty' rights.
To answer your question, I would say that within Canada, parliamentarians do not have the right to cross the floor when their doing so violates the constitution - namely, when their doing so violates citizens' s. 3 Charter rights to meaningful participation in the electoral process. Since parliament is not supreme in Canada, MP’s traditional privilege to ‘cross the floor' is circumscribed by section 3 of the Charter.
What needs to be asked is why the Attorney-General of Canada is not acting in an independent manner to seek clarification from the Supreme Court respecting this matter, or to have the Emerson ‘crossing’ adjudicated in the courts. Surely he 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, that the integrity of our system of representative democracy is not thrown into complete disrepute.
If the Emerson matter is allowed to stand without being legally challenged, I ask you and all Canadians – why bother to vote – when ten days later your choice can be completed ‘nullified’ by tradition – rather then being upheld by law. To those who assert, oh, he's a competent, intelligent man, we should move on and ‘get a life’ - I say that is a completely irrelevant and arrogant assertion. What is at stake is the very integrity of our representative system of governance and the constitutional rights of citizens to participate in an election in a meaningful way.
Barrister & Solicitor
[Proofreader's note: this article was edited for spelling and typos on February 22, 2006]