Canadian Alliance Leader (and Conservative Party leadership contender)Stephen Harper likes to talk about the importance of upholding “thesupremacy of Parliament.” When it comes to the hot topic of same-sexmarriage, Harper is all for Parliament having the final say on thedefinition of marriage. In an opinion piece published last September in TheCalgary Herald, Harper wrote that “the plain fact of the matter is that theLiberals have utterly failed to uphold Parliamentary supremacy.”
Harper also promised his fellow opponents of equality that “we will seek toreassert Parliament’s will on this matter by again bringing the issue to avote in the House of Commons next week. We will continue to argue thatmarriage is a very important matter of social policy which must be decidedby Parliament — not by the courts.” That argument included a clear call forthe government to use “all necessary steps” — including invoking thenotwithstanding clause — to cover for the fact that the traditionaldefinition of marriage had been found to violate the Charter.
In a typical speech on the issue, Harper laments that the Liberals “standsilent as the government and the Supreme Court conspire to strip Parliamentof yet more influence.” (It is worth noting here that, while he bristleswhen it is pointed out that he is putting forward “a conspiracy theory,”Harper’s words clearly speak for themselves.) Indeed, Harper even made surethat the agreement to merge his party with the Progressive Conservativesreferred to “a belief in the supremacy of democratic parliamentaryinstitutions” as one of the new party’s “founding principles.”
Much as I disagree with Harper’s opposition to same-sex marriage, he isobviously a man of principle, committed to the ideal of a country whereelected officials make laws and courts mind their own business. Or is he?The reality is that — when Parliament passes a law that he doesnâe(TM)t like —Harper displays a rather selective amnesia about his stated interest inupholding “the supremacy of Parliament.”
As the President of the National Citizens Coalition (a position he heldafter his brief retirement from the role of MP, before he made histriumphant return as party leader), Harper had a remarkably different viewof the need to protect the supremacy of Parliament. In fact, he led theorganization into a constitutional challenge of portions of the ElectionsAct that limit the ability of third party organizations to spend money topromote or oppose candidates.
Similar laws have been struck down by lower courts before, but arevised law was passed in order to prevent favoured candidates from avoidingelection spending rules. Aaron Freeman of Democracy Watch argues that “thelaw would merely prevent some voices from being heard disproportionatelymore than others because of their wealth — a democratic objective if thereever was one.” The Supreme Court ruled in 1997 that third-party spendinglimits are constitutional, noting that “limits on such spending areessential to maintain an equilibrium in financial resources and to guaranteefairness.”
Perhaps most telling is what has happened during periods when norestrictions on third party spending were in place. The Free Trade electionof 1988 was only the worst example of moneyed interests using theirresources to shape the outcome of the election. During the 1993 election,Harper himself was a significant beneficiary of the NCC’s largesse. Theorganization spent an estimated $50,000 on attack ads aimed at theProgressive Conservative incumbent in his Calgary riding.
When Harper first announced the court challenge in 2000, he argued that “anyattempt to control or restrict communications between citizens duringelection campaigns — or, frankly, at any time — is unconstitutional. Youcan 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, andwe’re back in court again.” Note the remarkable lack of concern exhibited byHarper for the supremacy of Parliament.
In 2001, when an Alberta judge ruled in the NCC’s favour, Harper wasabsolutely giddy: “This is a magnificent victory for freedom. Justice Cairnshas restored an important right for all Canadians and dealt a stunningdefeat to those in the political establishment who want to shut citizens upduring electoral debates.” Harper continues to express his support for theNCC’s continuing court fight against election spending legislation, a casethat is currently before the Supreme Court.
Essentially, Harper appears to value the supremacy of Parliament only whenhe is desperately trying to prevent same-sex couples from exercising theirfundamental human rights. But, if Parliament dares to stand in the way of anextremist group that wants to function as an echo chamber for everythingthat Harper says in the coming election campaign, then he believes thatParliamentary supremacy must be challenged in the courts.