Stupid but Constitutional

More on why I think legislation forcing floor-crossing legislators to run in by-elections is not unconstitutional

In my last post, I asked whether there is a right to rat—whether member of Canadian legislatures have a right under the Canadian Charter of Rights and Freedoms to cross the floor and join the caucus of a party different from the one for which they were elected, without going through a by-election first. I argued that there is no such right, although the bans on floor-crossing, such as the one that exists, and is now being challenged before the courts, in Manitoba are a bad idea. Somewhat to my surprise, that post provoked a good deal of discussion on Twitter (relative to my other posts, anyway, which to be fair is a pretty low standard). Because of the time difference, the fun mostly happened while I was asleep, and I missed out, so I want to follow up here.

One question that was raised, by Emmett Macfarlane, is whether I sufficiently addressed the floor-crossers’ “freedom”, under section 2(d) of the Charter, to associate with the caucus of their choice (and indeed a party caucus a right to associate with them)”. I’m not sure how much more I can say on this point; there seems to be a fundamental disagreement between prof. Macfarlane and me here. As I see it, no one is prevented from associating with a caucus, nor is a caucus prevented from associating with anyone. Only a preliminary condition is imposed: that before undertaking a (formal) association, the floor-crosser be elected under that caucus’s party label. The floor-crosser is put in the same position as any other citizen—one cannot become a member of a caucus, even if both sides are agreed, unless one first gets elected. (Consider the case of an unsuccessful candidate: he or she would very much like to be part of the caucus, and the caucus would love to have him or her, but those dastardly voters get in the way. ) Similarly, even if  engaging in collective bargaining is a constitutional right, as the Supreme Court now claims it is, I don’t think that even the Supreme Court would say that the requirement that the union have the support of a majority of workers before it is able to impose itself on their employer is a violation of the freedom of association, although it is doubtless a pre-condition that gets int the way of people engaging in associational activities.

Second, prof. Macfarlane remains of the view that the floor-crossers’ constituents rights to effective representation under that courts have read into section 3 of the Charter are infringed when their representatives are “restricted from representing [them] by responding to political circumstances that leads them to believe joining another caucus is the best way to do that”. I do not think that the right to effective representation has ever been taken to go nearly as far as prof. Macfarlane wants to take it here. In a passage from Haig v. Canada, [1993] 2 SCR 995 later endorsed by the majority in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, Justice L’Heureux-Dubé spoke of a

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. (1031; underlining in Figueroa at [25])

In other words, the right protected by section 3, both as a matter of constitutional text and even in the Supreme Court’s cases that have arguably expanded it to some extent, concerns the process of elections. As the majority put in Figueroa, it is “the right of each citizen to a certain level of participation in the electoral process”. [26] Section 3 does not deal with what happens within the legislature once the elections have taken place.

If the courts were to expand the scope of section 3 in this way, they would become entangled in all manner of questions that have always been thought of as a matter of politics—for example, whether the whip or a party line gets in the way of “effective representation”. (And I don’t think that parliamentary privilege, of which more shortly, will save them. Privilege attaches to the functioning of legislative bodies, not political parties or even caucuses.) Jan Jakob Bornheim pointed out to me that that’s precisely what happens in Germany, where the Basic Law‘s provision making members of the Bundestag “responsible only to their conscience” (article 38) has been interpreted to prohibit the imposition of party lines. For my part, I don’t think it’s a good idea to involve the courts in these issues, and I doubt that Canadian courts are all that keen to take on this responsibility, in the absence of a reasonably clear textual requirement that they do so.

In addition to all of that, I think that we should take seriously the role that party affiliation plays in people’s voting behaviour, and acknowledge that many, and probably most, voters will feel that their representation is undermined, not enhanced, by the ability of a representative whom they chose (in large party, if not exclusively) he or she was the candidate of one party to switch, mid-term, to a different party. Prof. Macfarlane suggests that this amounts to “using a reality of voting behaviour to transform the core purpose and function of” a legislator “which isn’t to represent a particularly party to but to represent a constituency”. For my part, I wouldn’t want a constitutional doctrine that is oblivious to “realities of voting behaviour” in the name of some high-minded pursuit of politics as it ought to be rather than as it is. In any case, I don’t think the distinction between the roles of representative of a party and representative of a constituency are as sharply distinct as prof. Macfarlane suggests. A legislator elected under a partisan banner can, and indeed is expected to, represent a constituency as a partisan (not in every way, of course, but in much of what he or she does),  and really don’t see how the Charter gets in the way of that, or why it should.

The final question I will address here is whether any of this matters, or whether the whole thing is a matter Parliamentary privilege anyway,  and the courts will not interfere with the way in which privilege is exercised. On this point, I think there is some confusion going on. The internal functioning of legislative bodies is a matter of privilege, as are the rules they make, internally and for themselves, such as their standing orders. That, as Benjamin Oliphant noted, the standing orders of Canadian legislatures deny independent members some important rights that they grant to those belonging to political parties (and thus arguably undermine their constituents’ right to effective representation) is a matter of privilege and not subject to Charter review. But the issue we are concerned with does not arise out of standing orders or an exercise by the Speaker of the Legislative Assembly of that body’s self-governing powers. It concerns the constitutionality of a statute enacted pursuant to one of the province’s legislative powers (namely that in section 45 of the Constitution Act, 1982, to legislate in relation to the constitution of the province), to be part of the law of the land, and not merely the law and custom of Parliament. The exercise of this legislative power is obviously subject to the Charter; as section 52(1) of the  Constitution Act, 1982 provides, “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

Now, as the Court of Appeal for Ontario explained in Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission), (2001) 54 OR (3d) 595 at [35], although the constitutionality of legislation in relation to the functioning of a legislature or one of its components is subject to the Charter, to the extent that this legislation calls for self-application by the legislature or its Speaker, the courts will not interfere with decisions made pursuant to that legislation. (This principle, known as the right of “exclusive cognizance”, is an aspect of privilege.) So, for instance, in the case of Manitoba’s ban on floor-crossing, it will be for the Speaker (I assume) to enforce the rule that “a member who … [has] cease[d] to belong to the caucus of that party during the term for which he or she was elected … must sit … as an independent and is to be treated as such”, and the courts will not call into question the Speaker’s decisions about what that entails. But the question of the constitutionality of that provision is a prior and separate one, and the right of exclusive cognizance does not apply to that question.

In short, although they are not immune from constitutional scrutiny because of Parliamentary privilege, bans on floor-crossing are not unconstitutional. They infringe neither the freedom of association nor the right to vote (or to effective representation) protected by the Charter. Once more, to say that such bans are constitutional is not to say that these bans are a good policy. I think they are ineffective (because they cannot prevent a would-be floor-crosser from voting with his new friends), and useless, because voters can always get rid of a representative they don’t like at the next election. One might even say that these bans are stupid—stupid but constitutional, as the late Justice Scalia used to say.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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