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Editorials
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"Is there a Legal Case Against David Emerson? - Part Two"
© Peter Dimitrov/ PatriotPete,
February 20, 2006
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.
Parliamentarians in Canada seem to think that they can do exactly
the same. The reality is, however, that in Canada, since the 1982
patriation of the Constitution with a new Charter of Rights
and Freedoms - 'parliament is not supreme'. The Constitution
is the supreme law of the land, and any common or statutory law,
tradition, privilege, entitlement, or judicial ruling inconsistent
with the Canadian Constitution can be overturned by a court of
competent jurisdiction.
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 a vis parliamentarians,
and to seek a balancing of those competing 'rights'. It is an
historical opportunity that may not come again soon, if at all
- so it should be seized upon by citizens who seek to protect
and expand citizen democratic rights.
Section 3 of the Charter elucidates the democratic rights
of Canadian citizens. On the face of it, section 3 grants citizens
a bare right to vote and to run in an election for public office.
But Charter analysis requires looking beyond the mere words of
the section. In the words of McLachlin, C.J.B.C. S.C. (as she
then was), "[m]ore is intended [in the right to vote] than the
bare right to place a ballot in a box": Dixon v. British Columbia
(A.G.), [1989] 4 W.W.R 393, at p. 403.
As Dickson J. (as he then was) wrote in R. v. Big M Drug Mart
Ltd, [1985] 1 S.C.R. 295 at p. 344:
"[t]he interpretation [of a section of the Charter] should
be.. a generous rather than a legalistic one, aimed at fulfilling
the purpose of the guarantee and securing for individuals the
full benefit of the Charter's protection."
That is, Charter interpretation of a section requires a broad,
generous and purposive approach.
The leading case that elucidates citizen's democratic rights
is the November 2003 case of Miguel Figueroa v. Attorney General
of Canada, SCC File No: 28194.
In Figueroa, supra., the Supreme Court said:
- ".the right to vote enshrined in s. 3 of the Charter is
not equality of voting power per se, but the right to "effective
representation". Ours is a representative democracy. Each
citizen is entitled to be represented in government.
Representation comprehends the idea of having a voice in the
deliberations of government as well as the idea of the right
to bring one's grievances and concerns to the attention of one's
government representative."
- "But the right to effective representation contemplates
more than the right to an effective representative in Parliament
or a legislative assembly. .Clearly, in a democratic society,
the right to vote as expressed in s. 3 must be given a content
commensurate with those values embodied in a democratic state."
- "The purpose of s. 3 of the Charter is, then, 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.
(Emphasis added to their by this author)
- "The principle of electoral fairness flows directly from
a principle entrenched in the Constitution: that of the political
equality of citizens.. Elections are fair and equitable only
if all citizens are reasonably informed of all the possible
choices and if parties and candidates are given a reasonable
opportunity to present their positions."
- "The rights to vote and to be a candidate do not fit the
classic model of a negative individual right to be free from
government interference. Citizens cannot exercise their s. 3
rights on their own, without the state's involvement. Rather,
s. 3 imposes a positive obligation on the government to set
up an electoral system which, in turn, provides for democratic
government in accordance with the choices of Canadian voters."
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 both David Emerson's name and his Liberal
Party affiliation. Emerson campaigned as a Liberal, put up lawn
signs announcing his Liberal Party affiliation, attacked his Conservative
party opponent in the riding, and based on his personal qualifications
and Liberal party affiliation, the citizens of Vancouver- Kingsway
elected him. Then, a few days later, well before Parliament is
called in session - David Emerson 'crossed' over to become a Conservative
party Cabinet minister.
Based on my understanding of s. 3 Charter rights, and the publicly
available evidence respecting the context and timing of the "crossing",
it is my opinion that the post-election actions of David Emerson,
and perhaps, the Prime Minister as well, nullified the s. 3 Charter
rights of the citizens of Vancouver-Kingsway to play a meaningful
role in the election of their elected representative, and it further
denied them the right to "effective representation" by the Party
of their choice (Liberal) and their "party-affiliated"
representative - "David Emerson qua a Liberal". I also assert
that the actions of David Emerson and the Prime Minister are neither
fair nor equitable to the citizens of Vancouver-Kingsway, who
essentially had their s. 3 right to play a meaningful role in
the election of their representative stripped away.
Given that Figueroa suggests that s. 3 imposes a positive
obligation on government to set up an electoral system which will
provide for democratic government in accordance with the choices
of Canadian voters, one can well conclude that in this context,
the government, parliament, Elections Canada, and Minister of
the Crown, have clearly failed to provide that positive obligation.
Unlike other citizens in other constituencies of Canada who got
the "party-affiliated representative" they elected, the citizens
of Vancouver-Kingsway have been denied that basic right. Cannot
it not then be asserted that said denial is injurious to their
"political equality" rights and basic dignity as citizens, a dignity
protected by the s. 15 Equality Rights provision of the Charter.
What needs to be asked, is why does not the Attorney-General
of Canada, act in an independent manner to seek clarification
from the Supreme Court respecting this matter?
Surely the Attorney-General of Canada 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,
and as importantly that the integrity of our system of representative
democracy is not thrown into disrepute.
While some, perhaps many will disagree with my assertions, these
submissions are neither frivolous nor vexatious, they are made
with serious intent by reference to constitutional law, and they
point to matters that ought to be clarified by the courts of this
land. Citizens, parliamentarians, political parties of all stripes
and persuasions deserve to know just where the lawful and clear
line ought to be drawn between 'parliamentarian rights' and 'citizen'
democratic rights.
In this context, at this time of history, it is suggested that
it is incumbent upon the Attorney-General of Canada to act to
resolve this matter. Action might take the form of the appointment
of a Special Prosecutor to investigate, a judicial inquiry, a
reference question to the Supreme Court.
If none of these occur, then if falls directly to citizens to
rise to the challenge of defending their democratic rights in
the courts and pressing on with even more 'political heat' as
they see fit. Surely, if the Emerson matter is allowed to stand,
the precedent will stand, tradition in favour of parliamentarians
will be further consolidated, and democratic rights of citizens
even further eroded. Is the Canada we contemplate or do we not
aspire to better 'model' of democracy?
If the end result of this 'imbroglio' is that David Emerson will
continue on to sit as an MP - then I ask you and all Canadians
- why bother to vote? Why bother to vote when just a few days
after a general election your choice as a citizen can be completely
'nullified' by tradition, by parliamentary privilege, by the prerogatives
of the Prime Minister's office, rather then being upheld by law?
Finally, to those who assert, oh, Mr. Emerson is a competent,
intelligent man, we should move on and 'get a life', I say that
is a completely irrelevant and arrogant assertion. In a society
that purports to be a representative democracy nothing can be
more important than the very integrity of that system of governance
and the constitutional right of citizens to participate in an
election in a meaningful way. For these reasons citizens in all
constituencies need to inform themselves of their legal rights
and Stand Up for Democracy, indeed, Stand Up in Solidarity with
the Citizens of Vancouver-Kingsway.
Peter Dimitrov
Barrister & Solicitor
1200-207 W. Hastings St.
Vancouver, BC V6B 1H7
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