How a decades-old law has neutered our parliament

Isn't it strange that we're not discussing sex-change operations? No, really. A week ago the Citizen reported that the Ontario government was denying plans to reinstate public medical coverage of them. And you can see why it might be a bit embarrassing to resume paying for a procedure that is, frankly, a little on the exotic side right after walloping the populace with a big tax hike you lied about during the election and delisting mainstream procedures such as physiotherapy and eye exams.

This being Canada, an ex-democracy, the predictable next step was for the relevant minister to deny having a policy on the subject, an opinion on it or, heaven forbid, jurisdiction over it. By day's end, CFRA reported, "Health Minister George Smitherman says the province's courts and human-rights tribunal" would settle the issue. When exactly did the people's representatives lose even the ambition to control the public purse?

It's not as if the Ontario government just delisted this procedure because they are homophobic meanies. Rather, like everyone else, they must constantly decide how to allocate scarce resources among competing ends. As they have: Sex changes are covered in Alberta, Manitoba and Saskatchewan, and Newfoundland.

Nor is it immediately clear why human-rights law is not something made by legislatures and subject to amendment or override by them. Yet the Supreme Court of Canada will on June 9 and 10 hear a case regarding micromanagement of the B.C. health budget, specifically whether the province must fund a particular childhood autism treatment. And on June 8, the Court will hear arguments about the Canada Health Act itself.

Courts? Under the parliamentary system, as A.V. Dicey noted in The Law of the Constitution in 1885, the legislature is legally sovereign, though in the long run its decisions must reflect, or at least not blatantly contravene, the public's wishes. It is the system in Britain and, until recently, here.

Until recently. For Dicey gives a three-fold test of parliamentary sovereignty. "First, there is no law which Parliament cannot change ... fundamental or so-called constitutional laws are ... changed by the same body and in the same manner as other laws .... Secondly, there is ... no marked or clear distinction between laws which are not fundamental or constitutional and laws which are fundamental or constitutional. ... Thirdly, there does not exist ... any person or body of persons, executive, legislative or judicial, which can pronounce void any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution, or on any ground whatever, except, of course, its being repealed by Parliament."

Our situation before 1982 was anomalous; the British North America Act was an ordinary piece of legislation that Parliament could amend at will, but that was the British Parliament, not our own. That is why courts could strike down Canadian federal legislation that, for instance, intruded on provincial jurisdiction. Such a thing never happened in Britain. And there were significant difficulties in severing the links with Britain while preserving our parliamentary system intact, especially safeguarding provincial powers.

If the task was insurmountable, there was an alternative, adopted in the United States when it separated from Great Britain. Make the people legally as well as politically sovereign and let them, through delegates, establish a constitution that the legislature cannot alter without submitting such changes to the people for ratification. In that system, the courts may strike down laws as unconstitutional.

What we now have here is neither. Pierre Trudeau gave us a Constitution that was not a compact established by the people and amendable by them nor, though it was passed by Parliament, is it really amendable by Parliament. Instead, an Unidentified Constitutional Object hovers in mid-air, giving effective sovereignty to unelected bodies. For Dicey also notes that a body is not legally sovereign if there are "laws affecting its constitution" that it "must obey and cannot change ... a marked distinction between ordinary laws and fundamental laws" and "some person or persons" with "authority to pronounce upon the validity or constitutionality" of what it does. By such tests sovereignty rests not with our legislatures but our Supreme Court and, arguably, our human-rights commissions.

What exotic operation transformed "the power of the purse" into "What me minister"?

[First published in the Ottawa Citizen]

ColumnsJohn Robson