Protecting the supremacy of Parliament?

Monday, February 16, 2004

  • Stephen Harper

    Stephen Harper

Written by Scott Piatkowski

Canadian Alliance Leader (and Conservative Party leadership contender)Stephen Harper likes to talk about the importance of upholding "the supremacy of Parliament". When it comes to the hot topic of same-sex marriage, Harper is all for Parliament having the final say on the definition of marriage. In an opinion piece published last September in The Calgary Herald, Harper wrote that "the plain fact of the matter is that the Liberals have utterly failed to uphold Parliamentary supremacy".

Harper also promised his fellow opponents of equality that "we will seek to reassert Parliament's will on this matter by again bringing the issue to a
vote in the House of Commons next week. We will continue to argue that marriage is a very important matter of social policy which must be decided by Parliament -- not by the courts." That argument included a clear call for the government to use "all necessary steps" - including invoking the notwithstanding clause -- to cover for the fact that the traditional definition of marriage had been found to violate the Charter.

In a typical speech on the issue, Harper laments that the Liberals "stand silent as the government and the Supreme Court conspire to strip Parliament of yet more influence". (It is worth noting here that, while he bristles when it is pointed out that he is putting forward "a conspiracy theory", Harper's words clearly speak for themselves.) Indeed, Harper even made sure that the agreement to merge his party with the Progressive Conservatives referred to "a belief in. the supremacy of democratic parliamentary institutions" as one of the new party's "founding principles".

Much as I disagree with Harper's opposition to same-sex marriage, he is obviously a man of principle, committed to the ideal of a country where elected officials make laws and courts mind their own business. Or is he? The reality is that - when Parliament passes a law that he DOESN'T like -- Harper displays a rather selective amnesia about his stated interest in upholding "the supremacy of Parliament".

As the President of the National Citizens Coalition (a position he held after his brief retirement from the role of MP, before he made his triumphant return as party leader), Harper had a remarkably different view of the need to protect the supremacy of Parliament. In fact, he led the organization into a constitutional challenge of portions of the Elections Act that limit the ability of third party organizations to spend money to promote or oppose candidates.

Similar laws have been struck down by lower courts before, but a revised law was passed in order to prevent favoured candidates from avoiding election spending rules. Aaron Freeman of Democracy Watch argues that "the law would merely prevent some voices from being heard disproportionately more than others because of their wealth - a democratic objective if there ever was one." The Supreme Court ruled in 1997 that third-party spending limits are constitutional, noting that "limits on such spending are essential to maintain an equilibrium in financial resources and to guarantee fairness."

Perhaps most telling is what has happened during periods when no restrictions on third party spending were in place. The Free Trade election of 1988 was only the worst example of moneyed interests using their resources to shape the outcome of the election. During the 1993 election, Harper himself was a significant beneficiary of the NCC's largesse. The organization spent an estimated $50,000 on attack ads aimed at the Progressive Conservative incumbent in his Calgary riding.

When Harper first announced the court challenge in 2000, he argued that "any attempt to control or restrict communications between citizens during election campaigns -- or, frankly, at any time -- is unconstitutional. You can be assured the NCC will be taking this to court." He also bragged that "we've had these kinds of laws struck down, consistently, categorically, and we're back in court again." Note the remarkable lack of concern exhibited by Harper for the supremacy of Parliament.

In 2001, when an Alberta judge ruled in the NCC's favour, Harper was absolutely giddy: "This is a magnificent victory for freedom. Justice Cairns has restored an important right for all Canadians and dealt a stunning defeat to those in the political establishment who want to shut citizens up during electoral debates." Harper continues to express his support for the NCC's continuing court fight against election spending legislation, a case that is currently before the Supreme Court.

Essentially, Harper appears to value the supremacy of Parliament only when he is desperately trying to prevent same-sex couples from exercising their fundamental human rights. But, if Parliament dares to stand in the way of an extremist group that wants to function as an echo chamber for everything that Harper says in the coming election campaign, then he believes that Parliamentary supremacy MUST be challenged in the courts.

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