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Mr. Pennings Goes to OttawaMr. Pennings Goes to Ottawa

Mr. Pennings Goes to Ottawa

As for the Senate, well, why go there?

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Topics: Law
Mr. Pennings Goes to Ottawa March 4, 2015  |  By Ray Pennings
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Democracy, we're told, is in deep trouble in Canada. On Parliament Hill, some male MPs stand accused of sexually harassing—possibly even assaulting—their female peers. Off the Hill, a veteran MP is convicted of flouting laws on electoral spending. Even political helpers deepen the damage with campaign misconduct that has earned one of them nine months in jail.

As for the Senate, well, why go there?

The institutional saving grace, in this account, is the Supreme Court of Canada: above the fray, independent, unimpeachable. Only bitter throwbacks, it's said, bother trotting out the trite complaint about the Court usurping what should be Parliament's to decide.

That's the political picture we're asked to accept. But like anything in politics, indeed like any picture, it is prudent to ask whether it is true. Even if it is true, there is wisdom in asking whether it is good. Does democracy really benefit from having its primary outcomes determined by a Court that functions, as it must, like a court? Or is there something in the messy, often dysfunctional form by which the House of Commons conducts itself that is actually more conducive to the true spirit of democratic life?

It's fascinating to approach these linked questions not as abstractions, but through observation of physical reality. In recent months, I've had the good luck to sit through a Supreme Court hearing in a morning and in the visitors' gallery of the House of Commons for an afternoon. I wish such luck could befall all Canadians. It would equip them not with ideological ammunition but with an understanding of what is missing from the picture sketched above.

The Court is, in its manifestation, an imperious, if not imperial, place. The nine justices sit in an elevated rank above the lawyers arguing any given case. They physically look down on the advocates; accomplished Canadian men and women who suddenly find themselves thrust into the position of lower-order supplicants. Well-paid supplicants, sure, but supplicants still.

The justices routinely interrupt. They lead the argument where they want it to go. Exchanges become about their understanding rather than the point that those below them wish to make. There is great emphasis placed on not wasting the Court's time. During a recent hearing, Chief Justice Beverly McLachlin curtly asked whether a government of Canada lawyer would be finished his submission by 12:30 since that was her time for lunch.

The sense of regal majesty is heightened when the hearing involves life and death matters like the  law on euthanasia. Whatever one feels about that issue, Parliament has already spoken emphatically on it, as has the Supreme Court itself. Both institutions have said existing laws are appropriate and constitutional. Yet here was the Court peremptorily revisiting what others had already decided for Canadian democracy—and let us have it done without disturbing lunch. The Court acted similarly in the Bedford prostitution case.

That may not be the way the balance of our institutions was designed. It is the observable reality of how it now works. To watch the House of Commons, by contrast, is to see seeming dysfunction become the effective working of what the institution was meant to be. For all the bad behavior of individuals associated with it, Parliament truly does operate as the French root word implies: a place of speaking. More: a place of speaking into existence the democratic life of a people.

Here is an ordinary backbench MP praising the good deeds of eager-beaver grade three students at an elementary school. Here, moments later, is the Leader of the Official Opposition pressing the prime minster on how Canada is conducting itself on the world stage with the war in Iraq. And here is the prime minister, shorn of the hierarchical nature of his office, standing on the same physical level as his interlocutor, answering what is demanded of him on behalf of Canadians—and ultimately, having his office depend on Canadians' assessment of his performance through a ballot box.

Regardless of the insistence that democracy is down for the count, here it is being lived out as a process of dialogue, broadly defined, to find a mediated solution out of conflicting opinions. Yet there persists the dangerous belief that such a process no longer matters; that an idealized Court will decide.

Our parliamentary system, in fact, emerged from our ancestors getting the picture that letting the Court alone decide is not something free men and women can or should ever tolerate. Forgetting that may be the truly deep trouble with our democracy.

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