In an interesting recent blog post, Brent Rathgeber, an independent MP, discusses the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, and Parliament’s eventual response to it. Mr. Rathgeber’s post deserves attention for a number of reasons. Beyond its immediate subject, which is of course interesting in itself, it is relevant to the debate about the role of MPs that has been rekindled by the proposed “Reform Act” (my posts on the topic are here). In addition, Mr. Rathgeber has an interesting, albeit in my view unpersuasive, theory of the proper role of courts and of judicial review, which I will address in a separate post.
Mr. Rathgeber agrees with the Supreme Court’s decision, writing that
Sadly, there is no shortage of evidence to support [the] proposition [that these three Criminal Code Prohibitions made practising a legal trade unsafe and that is in violation to the Canadian Charter’s protection of security of the person]. Serial killer Robert Picton and Edmonton’s Project KARE’s Task Force on nearly a dozen murdered or missing women from “at risk” lifestyles are only a couple of the examples of how streetwalking is a dangerous, sometimes lethal, vocation.
As for what Parliament should do now, he notes that the government, which in his view is “[n]ot the least bit interested in harm reduction,” will be tempted by the “Nordic model” of criminalizing the purchase (though not the sale) of sex. In his view, however, doing so would be a mistake. Most importantly, as the Bedford respondents say, this approach still drives prostitution underground and thus makes it dangerous in much the same way the Supreme Court found to be unconstitutional. For another,
the liberty of purchasers also attracts Charter protection; if one could be jailed for purchasing sex, the Nordic Model becomes constitutionally suspect. I am searching for a product that is legal to sell in Canada but illegal to purchase. I cannot come up with an example.
Better to rely on “the approach Canada takes with respect to other morally challenging products such as tobacco, alcohol, and even exotic dancing”: licensing, regulation, and prohibition only where those involved are there as a result of coercion or are minors. This “approach is imperfect in all instances, but is likely preferable to an attempt to prohibit prostitution or unregulated anarchy.”
We can agree or disagree, of course. But what is certain is that this is a well thought-out position. Furthermore, Mr. Rathgeber is the rare politician who acknowledges that the politicians’ ability to shape the world is not unlimited. But of course his ability to think and, especially, to speak, so freely is a consequence of his being an independent MP, not beholden to ― and also, therefore, unable to influence ― any party. Were he still a member of the Conservative caucus, it is more than doubtful that he would have been able to express the same views in the same public way.
Which is a shame. Mr. Rathgeber is, one hopes, not the only thoughtful MP; one hopes that he was not the only one among his former party colleagues. It would surely be better if the intelligent and thinking MPs were able to speak their minds and deliberate about legislation which Parliament enacts. And it is important that such deliberation happen not only behind the closed doors of a party caucus, but also in public.
Conservative MP Michael Chong’s Bill C-559, the “Reform Act,” intended to increase the independence of individual members of Parliament from their resepctive parties’ leaders, might seem like a way to make this more likely. But there seems to be little reason to believe that it would have allowed Mr. Rathgeber to express himself publicly while remaining a member of the Conservative caucus. Bill C-559 would make an MP’s caucus membership subject to the will of his or her riding association, which would need to approve his nomination as the party’s candidate, and caucus colleagues, who would have the power to expel him or her, taking these powers away from party leadership. But party instances (whether leadership or riding association) did not force Mr. Rathgeber to leave the Conservative caucus. He chose to leave, citing his “comfort level in caucus,” policy disagreements, and the fact that the legislative process is subject to control by “unelected staffers” within an “opaque” Prime Minister’s Office. With Bill C-559, a conflict with caucus colleagues could lead to an MP’s expulsion ― indeed, the will of a party leader who, for whatever reason, chose to tolerate an unpopular gadfly MP might be overridden. And Bill C-559 does nothing to address the MPs’ lack of control of, or even involvement in, the legislative process.
Mr. Rathgeber’s story certainly suggests that something is rotten in our Parliament ― but also that the “Reform Act” would not stop this rot. It would be better, it seems to me, to try to take advantage of the intelligence and intellectual curiosity which, though it often seems otherwise, still exist on Parliament Hill, by involving members in the legislative process ― which, after all, is what their job description calls for. No legislation is necessary to make this happen ― only a change of attitude of party leaders who would let their colleagues be more than cogs in an electoral machine, and arguably also of the media who would not make any attempt at thinking out loud and deliberation as an opportunity for creating “gotcha” scandals and questioning the strength of a party leader. The trouble is that minds are much harder to change than laws.