In my latest book, Losing Confidence: Power, Politics and the Crisis in Canadian Democracy, I detailed the multiple ways in which the culture and practices of Canadian parliamentary democracy were eroding.
In essence, elements of Westminster parliamentary democracy are being changed to a more American model. The centralization of power in the Prime Minister’s office actually exceeds anything possible in the United States, due to the checks and balances in the US Constitution. In Canada, the legislative and executive branches are essentially the same, and when a Prime Minister denigrates the role of the House and runs rough-shod over the opposition, the PM’s powers to do so are unconstrained by anything other than tradition and respecting the supremacy of the House.
The Harper government has introduced greater partisanship throughout the workings of the House of Commons. House committees have been contaminated by the use of filibusters. Conservative Chairs of committees have been instructed by the Prime Minister’s Office (PMO) to control proceedings in the partisan interest of the governing party. The chairs have been instructed that if a witness is potentially embarrassing the Conservative Party of Canada, the chair should throw down his pencil and storm from the room. This move leaves the committee in a procedural quandary and ends the hearing.
Increasingly toxic partisanship is also infecting electoral politics. The use of attack ads outside of any election period are also new to Canada, starting with the memorable ‘not a leader’ series used to undo Stephane Dion. By the time the Conservatives ran the ‘ just visiting’ ads targeting Michael Ignatieff, Canadians seems to have accepted that politics was now permanently nastier.
Since the book came out last spring, things have gotten even worse. We had the second, astonishing, prorogation.
We had the conflict between the PMO and the House over access to the Afghan detainee documents, settled by an historic ruling by the Speaker in favour of the rights of the House over the PMO. This was quickly followed by further PMO thwarting of House authority by refusing to allow senior members of the PMO staff to appear before House committees; a situation that was unresolved as the House rose for summer recess.
‘Omnibus’ Bills Abuse of Power
Add to this litany a gross abuse of process. It started in spring 2009, when the budget implementation bill, normally a small and procedural piece of legislation to make the budget vote operational, was replaced with a bill larded with other non-budgetary measures. In 2009, the budget changed the definition of ‘navigable’ in the Navigable Waters Protection Act, weakening a law on our books since 1867; removed the right of women in the federal civil service to pay equity; and raised the threshold for review of the foreign take-over of Canadian corporations. The changes went through with only independent and Progressive Conservative Senators standing on principle to oppose the use of the budget to change unrelated laws.
The attraction of including these things was clear. In the House, budget bills are confidence measures, but as Senator Lowell Murray, former member of Mulroney’s Cabinet argued, the Senate has the right to remove those non-budgetary matters without triggering an election. His arguments fell on deaf ears—the bill passed with hardly a murmur.
We did not have to worry long about whether a precedent had been set; in 2010, the budget implementation bill was far worse. The numbers tell the story. The length of budget implementation bills, on average from 2001-2008, was 139 pages. In 2009, the first year of real abuse, the bill came to 580 pages. Distinguished Professor emeritus Ned Franks of Queens University has pointed out that at 580 pages, the 2009 budget measures constituted 32% of all the House business in that session. All with no House committee review, no debate on the substance of the changes. In 2010, the budget bill, titled the ‘Jobs and Economic Growth Act, Bill C-9,’ weighed in at 883 pages—or approximately half of the work of the House in the last session.
As Professor Franks wrote,‘These omnibus budget implementation bills subvert and evade the normal principles of parliamentary review of legislation.’ (‘Omnibus bills subvert our legislative process’—Globe and Mail, July 14, 2010) On July 6, I testified before the one legislative body that paused to examine the budget bill, the Senate Finance Committee. In a series of rushed hearings, the Senators heard about the changes found in those 883 pages: removal of lucrative business for Canada Post, potentially weakening our national public carrier; pre-approval for sale of Atomic Energy of Canada Ltd, without a public review of the questions of who will be responsible for the long-term management of high-level nuclear wastes; changes to the EI system; new taxes for airline travel; and, most appalling, the gutting of the environmental assessment process.
After my testimony, the Liberal Senators decided to join with independents to insist on splitting the bill to remove the non-budgetary matters. Combined, the Liberals and independents had just enough votes to split the bill and send the non-budgetary matters back to the House. Senator Doug Finley, Harper’s campaign director, threatened an election, but rather than continue sabre- rattling, on July 9, the Prime Minister appointed one more Conservative partisan to the Senate. The whole 883 page bill passed into law.
Some may see this as an outrage against environmental law, and it is. However, even more egregiously, it is an assault on democracy. It is further evidence that Stephen Harper is bent on undermining fundamental principles of Canadian government.
Elizabeth May, Order of Canada, author of seven books, including Losing Confidence: Power, Politics and the Crisis in Canadian Democracy (McClelland and Stewart, 2009), is leader of the Green Party of Canada and federal candidate in Saanich-Gulf Islands.