Prime Minister playing fast & loose with the law

An important private member’s bill introduced by New Democrat MP Libby Davies — the Secure, Adequate, Accessible and Affordable Housing Act — is at second reading in the House of Commons.

Bill C-304 positions housing as a human right and it would oblige the government to create a national strategy around housing, in consultation with provincial and municipal partners.

“We’re the only industrialized country now that doesn’t have a national housing plan,” Davies says. “Housing has been a particular growing crisis in Vancouver, not only affecting people who are homeless, but now it’s also affecting tenants. In the West End where rents have been going up, people are being evicted, partly because of the Olympics, but also the developers don’t want to build affordable housing — there’s no money in it for them.”

In Ottawa, more than 7,000 people used emergency shelters in 2008. Meanwhile, there are more than 9,000 families on waiting lists for low-income families.

If Davies can win the support of the Liberals and the Bloc Québécois, she may be able to get the bill past third reading an into the Senate. If the bill becomes law, it will be one of a small handful of private member’s bills that become law.

It’s an uphill battle at the best of times. But there are fears that given the government record, it may all be for naught.

Earlier this year in an interview with Capital Xtra, Liberal MP Carolyn Bennett described Prime Minister Stephen Harper’s attitude.

“He seems to think things that were passed in the House of Commons are a suggestion.”

With increasing frequency, the Harper government is ignoring laws it opposed in the minority Parliament, forcing Canadians to take the government to court in order to ensure compliance.

***

The Kyoto Protocol Implementation Act, introduced and passed in the last Parliament, is just such a bill. Brought forward by Liberal MP Pablo Rodriguez, the point of the bill was to ensure that the government followed its international obligations with respect to the Kyoto Protocol on global climate change.

“When the Conservatives came in, it was clear that they were going to abandon Kyoto,” Rodriguez says. “They said they would, and they did.”

Rodriguez sought and obtained the support of both the Bloc and the NDP, and his bill slowly made its way through the House of Commons, while the government put up a fight — intending to stall or kill the bill.

“In one meeting, a Conservative MP who doesn’t even sit on the environment committee spoke for two hours,” Rodriguez recalls. “He insulted me for two hours, and when the time was up, the meeting was over, and he left — so they filibustered that. They tried all kinds of tricks, saying that the bill was not legitimate, and this and that. But the Speaker ruled that no, it’s fine, it’s perfect, it’s debatable, so the debate went on, and we had enough votes with the Liberals, the NDP and the Bloc to pass it.”

Not that passage to the Senate changed the game either. For all the talk of Liberal domination in the Upper Chamber, it was still a battle to see the bill through.

People thought that because the Liberals had a majority, it would be easy, says Alberta Liberal Senator Grant Mitchell, with a snap of his fingers.

“While we could move closure — that is to say, force a vote, in the sense that we have a majority — we couldn’t actually make that motion stick,” he says.

The filibusters lasted until June, 2007. Then, two things happened. First, the Conservatives had a bill waiting for Senate approval — giving the Liberals leverage on the Kyoto bill. Second, an oppressive heatwave turned up the pressure on Senators to finish their spring session, rather than sit all summer as the Liberals had threatened.

“We did it,” Mitchell says. “But I will say, it was a very strong team effort — Claudette Tardif, the deputy leader who’s from Alberta, is just incredibly competent, and she negotiated that. Sharon Carstairs, a genius at rules, got us through some roadblocks. We had to get it through third [reading], and that got us so close, and then it was the leverage and the heat — it was really great.”

The bill became law, the Conservative government chose to ignore it. Whereas the law gave the government 60 days to outline a plan to reduce Canada’s greenhouse gas emissions to comply with Kyoto targets, the government brought forward a plan that simply said it couldn’t be done — end of story.

Lynda Collins, an assistant professor in the Faculty of Law at the University of Ottawa, says it’s an unusual tactic.

“It’s very uncommon for a government to explicitly say we are not going to comply, and in my view, that is what’s happened here,” says Collins.

Typically, she says, a government would produce a plan that it would say would achieve compliance, and while a community group might argue that it wouldn’t, it would become a battle of experts.

“They actually came out with a plan that said on its face, ‘This will not achieve compliance with Kyoto,'” Collins says. “It’s unusual on two levels — first of all, it’s unusual for a Canadian government to explicitly flout its international law obligations, to sign and ratify a treaty and say publicly that we will not comply. And secondly, it’s very unusual for a Canadian government to refuse to comply with a domestic statute. I would go beyond the word unusual and say that it’s deeply troubling, and it poses a real threat to our democratic traditions.”

An environmental charity, Friends of the Earth, has launched a lawsuit with the Federal Court in response to the debacle. They are waiting on an appeal.

“Because the non-compliance has been so flagrant, the applicants did something unusual,” Collins says. “They actually asked for something beyond a declaration — they asked for an order of mandamus, which is basically a mandatory injunction that would require the government to prepare a plan that complies with the law.”

Non-compliance of an injunction such as this could find the government in contempt of court.

So what does that mean for Libby Davies? Could a national housing strategy, adopted by Parliament, end up as the subject of another court case?

***

It’s not only Private Members’ Bills that the government is treating as mere suggestion, but its own laws, as well.

When Stephen Harper dissolved Parliament in the fall of 2008, he contravened — at least in spirit — his own fixed-date election law. Democracy Watch launched a Federal Court case charging that Harper broke the law.

“What we’re challenging is the Prime Minister’s advice to the Governor General — not the Governor General’s actions in taking that advice,” says Duff Conacher, coordinator of Democracy Watch. “If we win, it will be illegal for the Prime Minister to advise the Governor General to call an election unless the ruling party has lost a vote of confidence in the House of Commons.”

From there, “a vote of confidence” will have to be defined, preferably by statute.

“It’s a win either way for us in that we either show that he broke his promise, which is just further evidence that he’s a misleader, not a leader,” Conacher says.

Conacher is also disturbed by the fact that the Attorney General, Rob Nicholson, went before the Commons and Senate to say that Harper promised to follow the spirit of the law, and yet didn’t.

“This is what Dick Cheney and Karl Rove did in the US with Bush,” Conacher says. “Every place there was a grey area, they got a lawyer to write an opinion saying that the President can do this.”

“This government is very much practising Rovian politics.”

***

“There’s something sick in your democracy when the person elected to lead the country and respect the law doesn’t even respect it,” Rodriguez says.

And he’s not the only one who thinks so.

Heather MacIvor teaches political science at the University of Windsor and sees this as an issue of the rule of law.

“One of the defining characteristics of the rule of law is that the government enforces the law whether it likes a particular law or not,” MacIvor says. “If it doesn’t like the law, it uses Parliament to try to change it, but it does not simply disregard the existence of a law, and that’s the part that concerns me as much as anything about these particular incidents.”

There are more examples— John Godfrey’s sustainability bill and John McKay’s bill on foreign aid — and MacIvor points to delays in enacting regulations to enforce the Federal Accountability Act — a bill the Harper government introduced.

“Government conforming to the law is the defining feature of democracy,” Collins says. “That’s what differentiates democracy from dictatorship — democracy is the rule of law, and we all follow the law, including the government. In a dictatorship, you have the rule of the people — government does what it wants.”

“He’s trying to replace this democracy with a monarchy,” Rodriguez says. “He’s acting as the new king of Canada.”

“It’s important to remember that it is a monarchy — that is our form of government,” MacIvor says. “The executive power, which is formally vested in the crown, is practically exercised by the Prime Minister, but always with the proviso that the Governor General has a reserve power to fire the Prime Minister if that is necessary to maintain the equilibrium in the constitution. I think it’s very clear now that we do not have a Governor General who is capable of doing that, and I think that this might encourage the government to push the envelope further than another government might try to do — quite simply because they know that the Governor General will not do anything to ever stop them.”

***

So far, Davies hasn’t thought far enough ahead to consider what might happen if her bill passes and is then disregarded. Would she take the government to court?

“I haven’t thought about that; that’s a good idea,” she says with a bit of a laugh. “I think at that point, you’ve got a real momentum that’s been created, and it gives you the political momentum — a sort of moral imperative — to carry out the will of the House. From that point on, it just becomes a sheer political battle with the government, saying that you’re ignoring the will of the House. We’re not at that point yet.”

But, judging from past experience with Kyoto, with fixed date elections and with a growing list of other bills, Davies may have to rely on more than just a moral imperative.

Watch Dale Smith’s interview with Liberal MP Pablo Rodriguez: