Representative Democracy in Canada

As a strong believer in democracy and the numerous elements associated with it, notably the rule of law, individual rights, pluralism, an independent media, opposition parties, and keeping public authorities under the control of citizens, I hope that the major reason for this symposium is that Canadians have a lively interest in democratic development everywhere whether in Beijing or Warsaw, Lagos or Manila, Bonn or Ottawa. Winston Churchill's point that "democracy is the worst of all systems of government except for the others have been tried" has never seemed more true than today, and it appears to be especially so for the poor of the Third World.

In Robert Miller's paper prepared for our International Development Research Centre, "Canada and Democratic Development", he quotes Tim Shaw, professor of African Studies at Dalhousie University: "I am very impatient with the reverse racism which assumes Africans can't handle democracy". John Harker, Director of International Affairs for the Canadian Labour Congress is also cited to the same effect: "We simply cannot accept the thesis that the ingredients of democracy freedom of speech, assembly and association must be reserved for a time that a society has reached a certain stage of economic development".

Perhaps the most foolish comment of all in this area is that developing countries require authoritarian or even totalitarian forms of government. This is despite mounting evidence to the contrary, including a recent study by the Economist magazine to the effect that of the 50 nations in the world now in the gravest difficulty over matters such as food output and falling GDP, most are not democratic in any meaningful sense of the term.

From that point of departure and noting that a number of countries in recent years have moved back toward democratic forms of government, including Argentina, Belize, the Philippines, Peru, El Salvador, Guatemala, Uruguay and Brazil, it was felt that it might be useful here if someone were to criticize constructively our own Canadian brand of First World democracy. Someone else might avoid our imperfections (should they agree that they are), or we might be encouraged through frank dialogue to do something about them ourselves. Dead branches should, I think, be removed quickly from both trees and democracies.

FEDERALISM

The quip that a page of history is better than a volume of logic is well shown by the substance and form assumed by internal Canadian federalism after 120 years. Reading about the three years of negotiations leading to the British North America Act, 1867, or examining its contents, a newcomer to Canada might be surprised by the vigorous federalism that has survived here contrary to the tendency for federal systems around the world to become dominated by their central governments.

We now have a federalism which in terms of the legislative and spending clout of the provinces is clearly at the same end of the long federal spectrum as Switzerland, West Germany and Australia. For example, in 1985 our ten provincial governments and their creations, the municipalities, spent almost $100 billion, or about half of the total spent by our three levels of government.

Sir John A Macdonald, our first prime minister, himself had a strong preference for a unitary form of government and there can be little doubt that without the strong objections by the French-speaking and Maritime Fathers of Confederation we wouldn't have gone the federal route at all. We Prairie Canadians at the time had no direct role in the Confederation debates and could only argue with the Hudson's Bay Company which administered our region. Most western Canadians now believe that a genuine federalism is the only solution for a country with so very much geography and in which two-thirds of a small population is concentrated in two provinces. We might remember our debt here to earlier leaders from the Maritimes and Quebec.

One day, I hope that Canadians everywhere will remember that it was Westerners in the closing years of the twentieth century who successfully pushed for "nationalizing" Ottawa to the point that every Canadian came to feel themselves equal and full partners in all of our national institutions.

Incidentally, the view that a federal system, by distributing powers between two levels of government allows regions or provinces to fulfill their own cultural and other aspirations has proven popular in the 20th century. A study twenty years ago concluded that more than half of the world's population lived in a federal system of one sort or another, including developing nations such as Mexico, Brazil, Venezuela, Malaysia, Indonesia, India, Nigeria, Pakistan and Cameroon.

The provincial legislatures in Canada were assigned authority under the BNA Act, 1867 for such matters as the administration of justice, municipal institutions, hospitals, local works and undertakings, direct taxation. Two other headings, "property and civil rights in the province" and "generally all matters of a merely local or private nature in the province", later assumed major importance with the very considerable life breathed into each of them by the Judicial Committee of the Privy Council in Britain (Canadian courts until 1949 were required to follow the precedents of the highest British constitutional court although the Supreme Court of Canada has since reversed that trend in some areas). Education was placed under provincial control; agriculture and immigration are administered by both Parliament and the provincial legislatures.

Parliament on paper got the rest under sections 91 and 92 of the BNA Act: defence, criminal law, the postal system, "regulation of trade and commerce", fisheries, banking, weights and measures, bankruptcy, unlimited powers of taxation, interprovincial and international transportation, and communications. Ottawa was also given a general power to "make laws for the peace, order and good government of Canada" on all matters not assigned exclusively to the provincial legislatures.

The transition from a federal to a unitary system through centralization by judicial decisions might have been decisive and irreversible. In the United States, for example, the movement from a genuinely federal system to what I'd term a hollow federalism was effected by the U.S. Supreme Court when it chose to enlarge the scope of Washington's power to regulate inter-state commerce to such a degree that to my knowledge only one or two acts of Congress have been disallowed as unconstitutional since the late 1930's. Countless measures passed by Congress over the past half-century have been upheld by the U.S. Supreme Court on the judicial view that they were regulating inter-state commerce. Had that happened here, many Quebecers, in my view, would have voted differently in the 1982 referendum.

From the standpoint of seven million or so western Canadians, Canada's constitutional development has led to a quite different set of problems. Once we managed with great difficulty to win control of our natural resources from Ottawa and their worth increased, provincial government budgets grew enormously. We became, and remain, as sensitive about natural resource issues as our French-speaking fellow citizens, quite understandingly, are about linguistic ones. Transfer payments from Ottawa became relatively less important to some western provinces and many in our region came to identify more closely with our provincial and municipal governments than with a distant (in both senses) national one and its various institutions.

Take as a highly visible example our Canadian Broadcasting Corporation as a national institution which is mandated to help unite our national family and has seen its annual appropriations from all tax payers nearly double between 1977-78 and 84-85 from $467.5 million to $904.7 million. There is no doubt that the Corporation is vital to numerous symphony orchestras and other artistic and cultural groups and individual performers across our country. Of concern here is only the editorial policy of the news and current affairs departments of CBC English television. How many Canadians in the outer eight provinces feel that we and our news are adequately represented on "the National"? Indeed residents of northern Ontario or non-metropolitan Quebec appear to me to have an identical concern.

A study by the CRTC in 1977 found that fully 73 percent of the news items carried then on the nightly CBC television news originated in four cities: Toronto, Ottawa, Montreal and Quebec City. It was also suggested, as I recall, that unless Canadians outside central Canada did something picturesque or confirmed some stereotype, they were not very likely then to be featured on our CBC television news. Things have perhaps improved marginally since, but there is still a long way to go.

The English television network of CBC is still I understand spending more than 80% of its budget within Metropolitan Toronto. And now the Caplan-Sauvageau Task Force on Broadcasting has proposed that Alberta and Saskatchewan should have no CBC television production facilities whatsoever. Edmonton, with probably the most active theatres companies in Canada, is to lose its CBC television production facility? I sincerely hope not. English CBC television appears to me to continue to conduct itself more like a Toronto institution than a national one. It should be "nationalized" for the benefit of all Canadians. Unfortunately it is not the only agency of our federal government which needs to see the country whole. Benign neglect by even the least of them is just no longer acceptable to the millions of us living outside metropolitain Canada.

Because most of our provincial governments are comparatively strong, this has probably tended to reduce both the commitment and need by Ottawa to ensure that its institutions serve all Canadians with equal vigor. A complicating factor here, of course, is that approximately two out of three Canadians reside in the corridor between Windsor and Quebec city. In a democracy, representation by population in at least one assembly is a must, so we quite properly have about 2/3 of our elected members of Parliament coming from Ontario and Quebec. The presumed political equality of the rest of us in consequence is sometimes rather difficult to detect. Enhancing the political status of Canadians from the outer eight provinces is the major challenge our democracy faces in the late 80s.

Indeed how well can a parliamentary system of government function in a federal state? To put it mildly, I don't think it has worked as well as it might have for the past two decades or longer. Most of the proposed reforms here move away from a parliamentary system as, say, practiced in the tiny and more homogenous United Kingdom.

EXECUTIVE

The executive branch of government has been described by one political scientist as "all those engaged in or associated with the active manipulation of men and things in the name of the government". In the case of Canada, this includes the Queen, Governor General, Lieutenant Governors, the prime minister, premiers and their cabinets, the federal, provincial and municipal public employees, the armed forces and police forces. The executive is clearly the essence of modern governments; legislators attempt for the most part to keep them responsive and responsible to public opinion. If an executive is too weak, as in the cases of the Fourth Republic of France, a government simply becomes ineffective.

It is of interest to note here that according to Canadian constitutional law all federal and provincial cabinets hold office at the pleasure of the Crown and only by convention are they there by the will of their voters, whereas in other democracies popular sovereignty alone is the accepted basis of government. The American president and governors, for example, govern in the name of their people.

I'll not attempt to discuss here the intricacies of the remaining royal or executive prerogatives. Let me simply say that any personal initiative which would reduce the ability of a Governor General or Lieutenant Governor to be a symbol of unity for Canadians would be regrettable. In my view, therefore, he or she should seek always to act on the advice of the relevant ministry.

For that reason in part, I personally favour a feature of the constitution of the West German Republic, the "positive non-confidence rule", which decrees that a federal Chancellor must resign after losing a vote of confidence in the popularly-elected federal Bundestag only if the legislators there at the very same time elect by majority vote someone to take his place.

The adoption of this feature of the Federal Republic's Basic Law was intended to prevent situations in which mutually opposing political parties collude to bring down a ministry (as happened in the House of Commons most recently in December 1979) without first agreeing on a suitable replacement. In practice it means that a Chancellor who is also head of a majority party is virtually impregnable as long as he keeps control of his party.

It strikes me that the adoption of a similar rule, presumably best through an amendment to the Canadian constitution but possibly also through an amendment to the House of Commons Act or even by an amendment to the Standing Orders of the House of Commons, would do much for the independence of private members of Parliament of all three parties. I know that the McGrath Committee on Parliamentary Reform recommended major changes to our current practices on this key issue. A permanent rule is needed. We MPs could then vote independently in the House instead of voting with our respective party leaderships. This would be a burst of fresh air indeed for our parliamentary system, which still appears to operate with the tightest party discipline for all three parties anywhere in the Western World.

JUDGES AND THE CHARTER OF RIGHTS

On April 17, 1982 when our Charter of Rights and Freedoms was proclaimed by Queen Elizabeth to be a central part of the supreme law of Canada, the role of judges, most notably those on the Supreme Court of Canada, for better or for worse changed decisively.

The strongest argument for entrenchment of our Charter, which I personally voted for, is undoubtedly that it is essential to protect minorities and individuals from abuse by capricious or unreasonable majorities in Parliament or a provincial legislature. Historically, I'm sorry to say, legislators in Canada have not had a very impressive record in protecting minorities. Closely related to that was the view that some human rights are so basic, necessary and important that they must be elevated to an untouchable status. As the U.S. Supreme Court once put it, "One's right to life, liberty and property, to free speech, free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections".

In my view, because of the central role the Charter now gives judges, it is essential that our new federal government changes the decades-old way governments appoint its 600 or so judges across the country. Until now, successive national governments simply selected a lawyer who was usually a political activist for them and then asked the relevant provincial branch of the Canadian Bar Association or Law Society if the selected candidate was acceptable. I'm told that for more than 85% of such requests the green light was given and the life appointment was effected by order-in-council without review by a parliamentary committee or anyone else.

The best Canadian model for federal reform is the system used now by both British Columbia and Alberta in appointing judges to their respective provincial courts. In essence, anyone qualified who wishes to become a judge in these provinces applies to the relevant Judicial Council, which are reasonably representative bodies consisting of judges from different benches and some lay people. The Councils approve candidates and the Attorney General of the respective province can appoint only from among the names approved by the Council. One doesn't even have to be an active supporter of the governing political party to reach the provincial bench and some outstanding men and women have been appointed in this manner.

(1) The process of the Joint Parliamentary Committee we used to develop a Charter of Rights applicable to all levels of government clearly had its strengths and weaknesses. An example of the former was the opportunities given to quite a number of interest groups, including women, multicultural communities and native peoples, to argue that certain rights should be included in the Charter. A weakness was that no provincial legislators were present while the Charter contents were being hammered out. The excessive speed with which it was drafted resulted in some bad drafting and it is certainly not in its entirety a document to stir the spirit that it might have been with more care and attention. Where feasible, the constitutional assembly route with a ratification mechanism such as used by West Germany, India and other federal democracies is the better way to go for both a constitutional accord and an entrenched Charter of Rights.

(2) The omission of the right to have and enjoy property is in my view a very serious defect in our Charter and should be remedied by an early constitutional amendment. Without it, there is no guarantee of compensation if one's property is taken by government; no guarantee of due process or fundamental justice; and no right to use the enforcement section of the Charter which says that laws inconsistent with it are of no force and effect. Such a clause would not make it more difficult, for example, to obtain an equitable division of property of all sorts on the break-up of a marriage. Section I of the Charter recognizes that limits on guaranteed rights can be enacted and our courts are showing greater concern for justice in this area. Remember that the homes and personal property of numerous Japanese Canadians in British Columbia seized by the federal government in 1942 were actually sold by a "custodian" of property. I'm told that the similarly seized property of Japanese‑Americans was at least not sold, presumably because of the right to hold property provision of their Bill of Rights. Assuming that the War Measures Act, or a less draconian replacement for it, under which these sales were made can co-exist with our Charter (which is clearly an unresolved issue), I conclude that a property clause would protect all Canadians better in all possible circumstances.

LEGISLATORS

I understand representative democracy to mean government by all the people; not government by a small elite of the informed or motivated by special interests; not government by simple majority of opinion or prejudice; but government which attempts to respect and enhance the position of all minorities within a given society. Canada is now a nation of minorities and there is no mainstream view or official position on every issue.

What is exceptional about Canadian democracy is that its particularly Canadian element can be approached in a number of ways. It is federal, multicultural, bilingual, parliamentary. It is the result, not of revolution or bloodshed, but of compromise and accommodation. Because it is organic and ever changing it is difficult to grasp its essence; and here I am not hiding behind words but rather underlining a problem. One of the key problems with our democracy is that we take its functioning for granted, that we spend far too little time in assessing it and trying to understand it, and too much in self-satisfaction and complacency. Part of my role today must be to attempt to jolt us out of this inertia, to remind us that there are problems which must be solved now. But also to reassure those who somehow feel locked out of our institutions because they are from the West or the East, or because they are women or children, because they are not of British or French origin, or because they are recent immigrants to Canada; that progress is being made and that their viewpoints and frustrations are being and will be represented better than in the past.

This representational function of democracy brings me to an analysis of Parliament and our legislative system.

It is received wisdom that the essence of the British Parliamentary system is that the executive is responsible for its decisions and actions before the legislative; our unique daily Question period is only the most visible aspect of this principle.

According to a rather innocent view, our laws are forged in the crucible of debate, of exchange and challenge in the House. In practice, government legislators in all legislatures in Canada support policies which have often been elaborated by bureaucrats and accept priorities which have been set by cabinets. The Opposition can oppose vehemently; it can propose alternative policies; but at the end of the day it is the government which disposes of the timetable and the basic substance of all our statutes.

The heart of the matter is how to involve the legislatures and therefore the legislators, the members elected by the people, more fully in the policy-elaborating and decision-making processes. The most successful model across Canada here appears to me to be the one introduced in our own province in 1971 by Peter Lougheed when he first became premier. As I understand it, no proposed legislation or government decision went ahead without the prior approval of the relevant caucus committee and/or his full caucus. His was a unique concept which to my knowledge no other government caucus across Canada has yet to duplicate fully.

I do not intend to propose anything particularly new here except to endorse the Lougheed model strongly. The McGrath committee on the reform of Parliament came to much the same conclusion: that the role of the individual member of Parliament must be enhanced. Standing and legislative committees must be given greater powers of investigation and control; the standing committee structure must reflect, as much as possible, the organisation of government.

The basic reality continues since these recommendations were made that it is still the cabinet of the day in Canada which decides whether it will regard a vote as one of confidence. Most observers assume that any government which loses a vote on an amendment to its Throne Speech, its budget, or any motion which specifically mentions non-confidence has no real choice. A ministry, however, in theory at least can even deem a lost vote on a frivolous Opposition motion to adjourn the House for a day to be a confidence matter. The result is an ongoing climate in which virtually all government MPs continue to vote with their House leadership as they have for decades. Thus the need for a definite rule such as exists in West Germany which would allow every MP to know in advance exactly whether a vote will be one of confidence or not.

One of the major problems of our democracy at times is the suffocating strength of our party system. In Britain, for example, government MPs think nothing of opposing their own governments on certain issues. Francis Pym and Ted Heath, whatever their motivations, have been vocal and effective counterweights to their own prime minister. In the U.S. Congress, party discipline in both the House of Representatives and the Senate was always weak and in recent years has become significantly more so. As both a westerner and democrat, I'm instinctively for less discipline and more personal expression in voting on issues.

Government private members have been raising serious questions in our House of Commons lately, but our party system and House practices have until now prevented our Parliament from being as effective as it was even in its original British incarnation, or was intended to be.

The area in which the most necessary reform still remains to be done is our unloved and unworked (for the most part) Senate.

As the special joint committee on Senate reform reported two years ago, an appointed Senate no longer meets the needs of the Canadian federalism. It is only an elected Senate that can fulfill its principal role, that of regional representation. How in a democracy can 104 patronage appointees fulfill the legislative role jointly with our elected House of Commons?

An elected Senate would strengthen the authority of Parliament to speak and act on behalf of Canadians in all parts of the country. The present senators, having no electors, in effect simply represent themselves in Parliament.

There is a counter-argument that a parliament with two elected houses cannot be reconciled comfortably with the principle of responsible government as it has operated in the Canadian tradition. But this argument can be refuted in this manner: only an elected Senate, with the political clout to dispute when necessary the decisions of a government supported by the House of Commons, can satisfy the original intent of the Fathers of Confederation: the provision of a chamber that would balance judiciously the power of the Commons by safeguarding the legitimate interests of the people in the less populous provinces. Does the elected Senate in Australia not function well in their federal system?

Since 1982, the method of selection of Senators cannot be altered except by a constitutional amendment approved by Parliament and by the legislatures of at least 7 provinces representing at least 50% of Canada's population. Presumably all of the legislatures of the outlying eight provinces could readily be persuaded to support an elected Senate with, say, five or six senators from each province, and indeed the present premiers of most, if not all, of the eight seem to be already supportive, so the major obstacles might presumably be Quebec and Ontario. Quebec presumably might agree to such a change provided the present constitutional amendment formula is changed to restore its veto over amendments affecting its legal authority. Perhaps Ontario legislators would then make a grand gesture in favour of a much-needed enhanced political equality for our smaller provinces. Don't New Yorkers and Californians accept well from that important standpoint equal representation in the U.S. Senate for tiny Rhode Island and many other small states? One assumes that the Senate itself would have to face the inevitable if all three parties in House approved an amendment to this effect. The result would be an improved democracy in which Canadians everywhere could take pride.

FINANCING OF NATIONAL POLITICAL PARTIES

Before concluding, I would like to say a word on the financing of national political parties in Canada. My colleague, François Gérin, MP for Mégantic-Compton-Stanstead, recently proposed that we limit contributions to any registered national political party to a total sum of $5,000 for a calendar year and reserve the right to do so to those qualified to vote. Presumably companies, unions, foundations and all other such legal entities would no longer be eligible to donate.

This concept is not new to Canada. Quebec has imposed even harsher rules for eight years with considerable success. Quebecers themselves, not institutions, alone finance their political parties. Other provinces have similar rules limiting contributions to political parties, but allowing companies to contribute to funding not exceeding the stated limit. The benefits, in terms of further democratizing all our political parties, would be significant; individuals and not corporations and others would become the financial building blocks of political parties, and ordinary men and women would thus perhaps be able to play an even greater role in setting the policies and priorities of all our political parties.

CONCLUSION

Many Canadian democratic institutions appear now to be more highly-esteemed in other parts of the world and by newer Canadians than by some men and women who were born here. The cynicism about politicians indicated in recent opinion surveys is unfortunate I suggest for at least two reasons: (1) contempt for politicians is something that can be transferred to democracy itself and this can only be harmful to our country, and (2) Canada needs to attract more men and women of understanding to politics at all levels. Only last week in speaking to a class of 25 or so very bright grade six students, I asked how many would consider becoming elected officials. Not a single hand went up.

One good way to reduce the current cynicism would be to ensure that our federal institutions reflect better the concerns and priorities of all Canadians. That goal is the basis for the proposals made today. Other national institutions, including our chartered banks, airlines, railways and cultural industries, might also be well served by resolving that henceforth we are all first-class Canadians regardless of region or province. That is also an example which peoples in other parts of the world would see as very much in the Canadian tradition.

Representative Democracy in Canada:

Strengths, Problems and Reform

Talk by David Kilgour, Member of Parliament for Edmonton Strathcona and Parliamentary Secretary to the Minister of Transport at

Symposium on Democracy in the Third World

Grant MacEwan Community College

Millwoods Campus