Conservative MP Dan Albas is concerned that the courts are being used to subvert the democratic will of Canadians as expressed through Parliament, and that makes three Conservatives who have fretted in recent weeks about the role of the courts in a democratic society—Albas preceded by Conservative MP Larry Miller and Sen. Bob Runciman.
For sheer novelty of argument, it will be difficult for anyone in this conversation to top Bob Runciman, an unelected senator who objects to the idea that an unelected judge would have any power to disagree with a law passed by elected representatives. (If an unelected judge shouldn’t be able to strike down a law made by elected officials, what, precisely, is the role of the unelected Senate? Would the Senate like to apologize now for defeating the NDP’s climate change bill?)
But Albas has so far been the most expansive. And while expansiveness from MPs is generally to be encouraged, there are a few problems here (and a few larger points to be pursued that might better frame the debate). In a post today, Albas laments that the response to his concerns has been rather lacking in substantive dialogue so far. Luckily, there remains much to discussed substantively.
His appearance on CBC’s The House this weekend was inspired by this report from Albas to his constituents. In that report, Albas frets that parliamentary supremacy is under threat, particularly as it pertains to a federal court judge’s recent ruling against the government’s changes to health care access for refugee claimants.
There are two problems with Albas’s setup.
First, to explain the problem, Albas concocts the following hypothetical:
To illustrate the supremacy of Parliament, suppose, after the election, instead of accepting electoral defeat of the Member and the bill, that a court challenge was mounted and a judge then declared Bill C-428 to be a charter right and ordered that newly arrived citizens to Canada could begin collecting OAS benefits within three years of residency, in spite of the fact that Canadians opposed this bill and voted against it. In essence, an unelected and unaccountable judge would have enacted policy against the democratic will of an elected government.
The bill in question, C-428, was tabled in 2009 by former Liberal MP Ruby Dhalla, who was defeated in the 2011 election. But understand the context here: That bill never proceeded past First Reading. It was not passed by the House of Commons. It never even received a vote. For that matter, it was never even debated in the House.
So, yes, it would be rather incredible if a judge ruled that it should be made law. But, of course, that’s not what happened in the case of Justice Anne Mactavish and her ruling on health care for refugees. Rather, she ruled that a change in policy made by the government had violated the rights of those affected.
Aside from that hypothetical, Albas also offers this explanation of what actually happened to C-428:
What happened to Bill C-428? In a word: democracy. Ultimately, an election occurred and the Liberal MP who authored Bill C-428 was not re-elected. In other words, the bill was defeated through our democratic process.
No, C-428 was not defeated. Liberal MP Ruby Dhalla was. Was her defeat somehow caused by her tabling of C-428? Maybe. Could be. Who knows. But C-428 wasn’t the name on the ballot, and you’d be hard-pressed to argue that it was the only consideration for voters in that riding.
Finally, here is Albas on the nature of parliamentary supremacy:
What is the supremacy of Parliament and why should you care? A fundamental principle of democracy is that, ultimately, citizens, through the democratic process, can elect a government they believe is best suited to make the decisions, policy and draft laws, that, in our case, will help build a stronger Canada. Obviously, in any democratically diverse society, there is a difference of opinion on these subjects and that is why we have elections. It should also be pointed out that a government that citizens disagree with can also be voted out of power.
Kind of, but not really. We don’t elect governments; we elect MPs who constitute a House of Commons. From that House of Commons is formed a government. The House of Commons then holds that government to account, scrutinizing its proposals, reviewing its decisions and ensuring that public funds are responsibly spent. Or, at least, that’s what is supposed to happen. Any concern for parliamentary supremacy should have to involve ensuring those principles are being properly and fully upheld—that the executive’s power has not subsumed the power of the legislature.
The difference between electing a government and electing an MP might seem trivial, antiquated or unrealistic (voters are, of course, thinking about who might be prime minister when they vote), but the principle of electing an MP is important here, particularly if the subject is parliamentary supremacy and the scrutiny of laws.
In his interview with the CBC, Albas raised two arguments about Justice Mactavish’s rulings: that refugees will be getting better health care coverage than Canadian citizens, and that the ruling will impose costs on the taxpayers that wouldn’t have otherwise been imposed. Mactavish actually directly challenged both of these ideas: the judge arguing that the benefits received are equal to those provided to low-income Canadians, and venturing that what costs the federal government avoids will end up being covered by provincial governments and other organizations.
Albas also argued for the existence of a trend of the courts being used by groups to overrule the decisions of the legislature. If such a trend exists—via email, Albas points me here, here, here, here, here, here, here, here, here and here for examples of recent cases in British Columbia—that would be worthy of discussion. But that needs to be substantiated. Various court cases might have been launched in recent years, but how many are governments losing? Does that represent an increase of some kind over previous years? If so, what, precisely, would those losses tell us about the judiciary and the role of the courts? Has there been an increase in the launching of legal challenges? If so, what does that suggest? (My first thought is that it would be rather difficult to limit the ability of groups and individuals to pursue legal remedy.)
I cannot claim to be steeped in the history of debate around the role and place of the courts in the governing of Canada, but I’m reasonably convinced, after consulting with a few people who are far more knowledgeable than I, that there are perfectly reasonable discussions to be had about how the courts should interact with legislatures. Maybe all this brow-furrowing over recent events in the nation’s courtrooms will lead to a perfectly reasonable discussion.
For now, we at least have what has upset Runciman and Albas: Justice Mactavish’s ruling on health care for refugees. That ruling is being appealed, and could well be overturned. And so all of this fretting could thus prove moot.
But that would still leave the concerns Justice Mactavish has raised. And if Parliament wanted to assert itself on this file, it could convene committee hearings in the fall to study the government’s changes to the Interim Federal Health Program. MPs could consider whether the judge’s concerns—about the treatment of children, for instance—are legitimate, and whether the government’s policy should be recalibrated and the program redesigned. In her ruling, Justice Mactavish specifically raised questions about the implementation and evidentiary justification for the government’s changes. Those would seem like precisely the sorts of things that Parliament should be responsible for considering.
Indeed, an argument for the supremacy of Parliament would surely be bolstered if Parliament regularly proved itself to be a forum for careful, rigorous and open scrutiny of government actions and legislation—if the MPs we elect were generally considered to be performing exemplary, and independent, review of public laws and programs. If Parliament should feel hurt by Justice Mactavish’s ruling, it might be because her analysis is the sort of thing Parliament should have already managed to perform itself.
Albas worries that when the supremacy of Parliament declines, voters are effectively disenfranchised. And he concludes with a few questions: Is our democracy getting stronger? Is our system of dealing with issues serving the general public? That’s a legitimate concern and those are good questions. But I suspect we’d be better off first asking those questions of MPs and the system they directly control.