Assertion, unsupported by fact, is nugatory. Surmise and general abuse, in however elegant language, ought not to pass for truth. Junius

2005/01/21

The Choices of Mr Harper

"I'd rather be right than be President." --- Henry Clay, 1839

And so it goes for Stephen Harper, who would rather be right --- at least in terms of his principles --- than be Prime Minister. (Only the churlish claim he'll never be either.) I'm going to make a prediction: same sex marriage will be the wheel upon which Mr Harper will finally be broken. He's a goner. Either his own party will unsheath the knife, or the Liberals are going to work him over first before feeding him to the party faithful. My money is on the Liberals right now. Either way, the gilt buffet table at 24 Sussex is just about out of reach; no more dreams of Tory patronage or dismantling the Beast, id est, the Canadian Broadcasting Corp. or reforming health care or devolving even more power to the provinces. All gone, as fleeting as a Northern summer.

Signs of the decline: Mr Harper imagining a Liberal plot, a slippery slope, to invest the nation with polygamy, eerily reminiscent of similiar statements during the election: "I don't believe there's any support in the country for the recognition of polygamy in law", he said. A small dust up between Mr Harper and the Prime Minister followed this obvious, if enigmatic statement. The Prime Minister threatened to go to the people:
Ce n'est pas mon intention de déclencher une élection. On est là pour gouverner et on veut continuer de gouverner. Mais si la question que vous me posez est: "Est-ce que je suis prêt à déclencher une élection pour appuyer la Charte des droits contre ceux qui veulent l'attaquer ?". La réponse est absolument oui [It's not my intention to call an election. We are here to govern and we want to continue governing. But if the question you put to me is, "Am I ready to call an election to support the Charter of Rights against those who would attack it?" My reply is yes, absolutely. (My translation.)]

and Mr Harper replied, "Bring it on":
I believe that we're on the right side of public opinion. If he has no legislative agenda he wants to pursue and wants to have an election, so be it.

Really? Mr Martin, whose political instincts are surprisingly poor for such an experienced politician, surely has an exceedingly good grasp on the fact Canadians are attached to the Charter of Rights like no other document. Mr Harper, whose political instincts are, if anything, worse, has consistently underestimated that same attachment. The contrast is all difference in the world.

The Liberals are correct in that the logic of Conservative Party's stated position on same sex marriage leads inevitably to one conclusion: invocation of the notwithstanding clause, Mr Harper's denials to the contrary. As I have noted here before, his proposal to enact "similiar-but-different" civil union status for gays and lesbians is an idea two or three years behind the times: that train has long left the station, and in any case would not probably be constitutionally sustainable. It's an all or nothing game now. Similiarly, constitutional difficulties await an up-and-down traditional definition. The only way for Mr Harper to square the box is to use the notwithstanding clause.

And it's here that Mr Martin has him. All the Prime Minister needs to do in any putative election campaign is to mouth the word "Charter" and make the link to the notwithstanding clause. Unfortunately for Mr Harper, it's not a difficult picture to draw, given the Charter being the ultimate third rail of Canadian politics. Add into the mix the indebtedness of the Conservative Party, its veneer of unity and the inevitable bigot explosion that always seems to afflict the party during election campaigns --- suggestions from Tory backbenchers that blacks and homosexuals should be kept in the back room or some like comment. A nasty combination: it would be game up for Mr Harper.

Still Stephen Harper keeps up a kind of doomed bravado. Perhaps his advisors are labouring under the delusion that Liberal division over same sex marriage means a fractured party, where in fact it's a bit of indigestable gristle for a ravening wolf. Wild eyed claims about polygamy and the tone of the new advertising campaign suggest he's conceded the battle to move the party to the centre to the social conservative wing. A dangerous, indeed futile, tactic, if he hopes to pick up centrist voters in central Canada: it confirms the worst stereotypes about the Conservative Party as the party of backwoods yahoos.

At this point, for numerous reasons constitutional and political, same sex marriage is a freight train. Politicians need either to climb on board or else get run over. What choices does Stephen Harper have? It is interesting to muse "what-if": what if Mr Harper faced down the social conservatives and swallowed whatever personal (and political) reservations he has on the issue and forced a three-line whip in favour of the bill? Could it be that we would see the birth of a modern Conservative Party, once and for all rid of the chains and claims of backwardness and bigotry, a responsible opposition and a viable and electable government in waiting? True, I almost certainly overestimate the power Mr Harper holds on the party, or the ability of the Conservative Party to visualize grand strategy in terms of tactical steps, or even its ability to clamp down on its own bullfruit supporters. Speculation is always fascinating, but in this case Mr Harper would rather be right. Too bad for him the Liberals hold no such scruples.

35 Comments:

Blogger Greg said...

I would agree totally with your argument, Michael, if someone other than Paul Martin was at the head of the Liberal government. He is as bad a politician as I have seen. He has stalled so long on this file that the forces of reaction have had time to organize and introduce things like the spector of polygamy to frighten people. Never underestimate the power of fear to move voters. The U.S. has shown us the way in that regard for the last 4 years.

Saturday, 22 January, 2005  
Blogger Pete said...

Good post, but I wouldn't equate Martin nor Harper with Henry Clay, who was the driving force in the Whigs for some many decades before finally dieing mere years before the party was swallowed by the Free Landers, Know Nothings, and Republicans. Harper and Martin will never be so influential, just more visible.

Saturday, 22 January, 2005  
Blogger Anselm (Not the Saint) said...

Michael,
When you wrote: "Add into the mix the indebtedness of the Conservative Party, its veneer of unity and the inevitable bigot explosion that always seems to afflict the party during election campaigns --- suggestions from Tory backbenchers that blacks and homosexuals should be kept in the back room or some like comment" and later wrote; "Could it be that we would see the birth of a modern Conservative Party, once and for all rid of the chains and claims of backwardness and bigotry, a responsible opposition and a viable and electable government in waiting" I understood why you chose to describe your blog as; "A purveyor of incomplete thoughts, half-baked truths or undigested ideas."

Congratulations, you have convinced me that there is no wisdom in Upper Canada; only incomplete thoughts, half-baked truths, undigested ideas and liberal bigotry.

Saturday, 22 January, 2005  
Blogger Michael said...

Anselm, the funny thing is I actually do feel sorry for Mr Harper. Hell, I've actually suggested a way out of his present conundrum. But the fact remains the Conservative Party, like the Reform and Alliance Parties before remains in thrall to its so-con wing, hampering its electability outside its rural western redoubts. After 4 elections, even with a tired, scandal-ridden, aimless Liberal government, Canadians still won't give the right a parliamentary majority. I know that the right likes to blame the "liberal" media, but as Margaret Thatcher once observed of her Labour party opponents who made similiar claims about press bias, it wasn't the messenger, it was the message. So you have to ask the question, is a perpetually weak opposition good for the country? Despite being a left-wing hack, I would have to say no. No becuase the Liberals haven't been held to account, no because federal institutions, including Parliament are discredited, and no because political opposition is tending to arise in more insidious forms, like separatist movements and over-reaching provincial governments.

As for being a liberal bigot, what can I say, you caught me. Congratulations.

Saturday, 22 January, 2005  
Blogger Michael said...

Anselm, the funny thing is I actually do feel sorry for Mr Harper. Hell, I've actually suggested a way out of his present conundrum. But the fact remains the Conservative Party, like the Reform and Alliance Parties before remains in thrall to its so-con wing, hampering its electability outside its rural western redoubts. After 4 elections, even with a tired, scandal-ridden, aimless Liberal government, Canadians still won't give the right a parliamentary majority. I know that the right likes to blame the "liberal" media, but as Margaret Thatcher once observed of her Labour party opponents who made similiar claims about press bias, it wasn't the messenger, it was the message. So you have to ask the question, is a perpetually weak opposition good for the country? Despite being a left-wing hack, I would have to say no. No becuase the Liberals haven't been held to account, no because federal institutions, including Parliament are discredited, and no because political opposition is tending to arise in more insidious forms, like separatist movements and over-reaching provincial governments.

As for being a liberal bigot, what can I say, you caught me. Congratulations.

Saturday, 22 January, 2005  
Blogger Michael said...

This comment has been removed by a blog administrator.

Saturday, 22 January, 2005  
Blogger Jon Dursi said...

Um... Michael says that there are bigots in the Conservative party (he didn't say _only_ the Conservative party), and that the party would be better of without them. And for that *Michael* is a bigot? I don't get it. If pointing out bigotry makes one a bigot, aren't you a bigot for trying to point out Michael's? And aren't I for pointing out yours? And aren't I doubly for pointing out my own?

Maybe if you explain more carefully. I don't think I understand.

Saturday, 22 January, 2005  
Blogger Andrew said...

"invocation of the notwithstanding clause"

You forgot to cue the creepy music, and send in the skeletons and boogeymen.

It's a legitimate tool and was put there for a reason, stop puking out Liberal scare tactics.

Saturday, 22 January, 2005  
Blogger Jon Dursi said...

If it's a legitimate tool and Harper would be right to use it, how can mentioning it be a scare tactic?

Saturday, 22 January, 2005  
Blogger Pete said...

I believe it was put their to appease Quebec, hence the language laws, ect.

Sunday, 23 January, 2005  
Blogger Greg said...

As I recall Pete, the notwithstanding clause was included at the behest of Sterling Lyon, who thought that parliament should get the last say on matters dealing with rights and not the courts.

Sunday, 23 January, 2005  
Blogger Greg said...

What bothers me about this whole affair is its false nature. All Martin has to do is control his own caucus and the bill passes. End of "crisis".

Sunday, 23 January, 2005  
Blogger Chris said...

I responded as follows on my own blog in a post entitled "Michael meet reality, reality meet Michael".

Michael of the Upper Canadian is making predictions about Stephen Harper's suposed political suicide over same sex marriage. Given the title of this post, you get the gist of my opinion. I tend to see this analysis as nothing more than Liberal wishful thinking.

Michael, in case you haven't noticed by now there is substantial anger towards the Liberal party's latest attempt at social engineering. Their cronies in the Supreme Court failed to give them the legal cover they demanded. Thus poor Irwine Cotler is left saying "the court", suposedly the "Supreme Court" made me do it. Factually, this is simply untrue the Supreme Court stated that the government could go forward with legislation on the matter not that they had too.

A number of lower cases decided to directly ignore the precident in Elgin, and wander off into the realm of legal fantasy and ignore such concepts as stare decisis and struck down the governments marriage laws.

Stephen Harper has proposed that legislation be introduced which grants the benifets that gay couples have been deprived of, simmilair to the Interdependent Adult Act in Alberta, allowing them pensions, tax credits ect as "civil unions" or whatever word they choose to go with. Harper has stood firm that marriage is between a man and a woman to the exclusion of all others.

According to Michael, choosing to stand with thousands of years of established history and the teachings of every major religion is "bigotry". Quite frankly I should think that choosing to ignore it and deciding that you in your limited capacity as an individual "know better" is "extremism" and "extremely arrogant".

Returning to the matter of the notwithstanding clause, the need to invoke it is not some legal certainty. The process to be followed would be this, the current legislation would be amended so as to included the position Harper has lined out. It would come into force and effect as law all across Canada.

Thereafter it could be challenged in court. However, given that the actually "harm" being suffered by gay couples given the status of civil unions would be pretty much non-existant from their prior complaints. They've recieved the tax credits and pension benifets and so on, now all they can argue is that they want "the social acceptence of the word".

This sort of vague and unquantifable harm is far more difficult to gain a judgement for and they'd have to argue the whole thing over agree from Queen's Bench on upwards to the Court of Appeals and then likely to the Supreme Court. Given that government legislation would have specifically stated that marriage is between a man and a woman and made provision for the grievances that were forming the basis of their prior complaints the results would be entirely prejudiced against the sucess of the gay lobby. That's how the legal system works.

Only, if they were sucessful in finding that new legislation that had undercut the basis of prior rulings in their favour at the highest courts in the land would their be a need to invoke the notwithstanding clause. Apparantly the Liberals Party took its donations from various client charities, municipalities, zoos and big business and used to purchase a crystal ball, through which it becomes aware of court rulings which would occur years into the future.

The process described above happens to be how things work in reality rather than the fantasy land Irawin Cotler, Paul Martin and Michael happen to be living in.

Michael, being a Liberal, chooses to add a few more blatant lies to his attempt at prognostication.

Add into the mix the indebtedness of the Conservative Party, its veneer of unity.

Firstly the party isn't in debt. In fact the Conservative Party is in the best fiscal shape of any party of the country. This was in the papers in November Michael, and discussed in the blogsphere as well.

Secondly, a thin veneer of unity? Yes the conservative party is having unity problems while Liberal Party is busy engaging in fratricide between Chretien and Martin camps, not to mention warring between its left and right wings over gay marriage and the lack of freedoms being afforded ministers.

An issue which all Conservative Mps except 2, and the vast majority of conversative supports support is going to tear the party appart?

Michael seems to labour under the illusion that all Paul Martin needs to do is say "Charter" and the whole country is going to swoon and change its mind over same sex marriage. Unfortunately, that isn't the case and the country remains extremely divided on the issue. With a majority of the population favouring the Conservative Party's stance on the issue. As I mentioned above, the nothwithstanding clause isn't an inevitable conclusion to the matter.

The Liberal Party is well aware that they are on the wrong side of this debate and are alienating their own supporters. Martin has been attacked by not only the Conservative Party, but foreign leaders, and a growing list of religious leaders. Now there is the Conservative Party's direct appeal to ethnic and religious groups on the issue of same sex marriage. Why? Because Harper smells blood, not because he's tilting at windmills.

What Michael doesn't seem to realize is that - Harper is against same sex marriage, his caucus is against same sex marriage, his party is against same sex marriage and the public is against same sex marriage. Anyway you look at it, that does not precipitate a unity crisis. In fact its what one might call a "winning combination."

The notion that somehow polygamy is a ridiculous topic to be brought into the debate about same sex marriage and some sort of "right wing conspiracy theory" and the product of the minds of "yahoos" is absolute bunk. Polygamy is what one calls the law of unintended circumstances, once you open the flood gates there is no telling what can come out. Is it irrational to say that if the defination of marriage can be changed from a man and a woman, to two people, that there is no longer any particular barrier to the idea of two or more? No not at all, once you demolish the accepted understanding of things its difficult to draw a new line in the sand.

Furthermore, you can make a far better prima facie case for polygamy than you can for same sex marriage, as polygamy has a firm foundation both in history, religion and practice throughout the world. You could argue not only a violation of your sexual orientation - that's right your orientation towards only one partner is a preference, as well as freedom of religion. And by the way Michael freedom of religion is one of the guarantees actually written into the Charter, unlike sexual orientation.

Michael then goes on to suggest that Harper should have forced his own party to vote in favour of the legislation to developed "a new, modern Conservative party" which was "viable and electable". This notion is so rediculous that it hardly warrants comment and only the joy of ridiculing the statement compells me to respond.

Michael's "new, modern Conservative party" seems to sound exactly like the "old, corrupt Liberal party". Which begs the question what would the point be of having two parties which agreed on everything? He seems to completely over look the fact that a large segment of the population agrees with both him and the Liberal party and deserves political representation because of this quaint notion called democracy.

"Harper should have forced his party to vote in favour of the legisation" - note to Michael you're predicting his actual stance will ruin him, I can personally guarantee that forcing his party to vote in favour of same sex legislation would have caused Harper to be deposed as leader within a month's time. It would be political suicide and his party would not have listened. He could have told them "you must be in favour of the legislation or be expelled from the party", they in turn would have said "go to hell this is a grass roots party" and that would have been the end of Stephen Harper. Fortunately, unlike in Michael's dream world Stephen Harper is not stupid.

Michael labours under the illusion that this issue somehow makes the Conservative Party unelectable if it carries on into an election, my response is simple. Bring it. Just bloody bring it. If you want to hand us the keys to 24 Sussex on a silver platter, let's have an election on the issue.

Monday, 24 January, 2005  
Blogger PR said...

Michael, you still have some persuading to do. You've repeated the Liberal line here that section 33 would have to be invoked in order to re-affirm the traditional view of marriage in legislation. But it would seem that some ruling from the Supreme Court (affirming that denying gays marriage rights violates their charter rights) would have to be present in order to be over-ridden by the notwithstanding clause. As you know, no such ruling exists; the Supremes, in fact, refused to answer the question in the recent same sex marriage reference to the federal government.

I say "as you know" because you go to Herculean efforts to justify this Liberal position anyway. Wouldn't be "constitutionally-sustainable?" Now that is an innovative approach; is the federal government now required to invoke the notwithstanding clause when it feels that the Supreme Court may rule a certain way and invalidate government legislation some time in the future? Perhaps the government should bring Mr. Chretien's fortune-teller back onto the public payroll to assist them in this capacity?

I'm very sorry to acknowledge that you are correct: same-sex marriage is a significant issue, and the Liberal Party's primary club at this point is the assertion that any view contrary to their own violates the Charter. The problem with this, as anyone who actually read the same sex marriage reference (apparently Mr. Cotler didn't) knows, is that it is a lie, one perpetrated on your website.

Monday, 24 January, 2005  
Anonymous Anonymous said...

If you even hint at defending a position Martin is taking (...and ignore the political strategising of politicians, as it's in their nature) you guarantee you're going to get a slew of verbose replies contradicting you or suggesting your logic or sense of reality is faulty (by partisans, naturally). Bottom line, however, is that Martin is correct, and Harper is wrong (..and loopy, with respect to the 'polygamy' canard). The Supreme Court reference threw the issue of marriage legislation back at Parliament because it is Parliament's function to legislate on this issue, and should at least attempt to do so. The justices got bloody tired of being accused of judicial activism when they were being asked (through court challenges) to do their jobs, while the MP's avoided theirs. No one should be fooled however; if the legislation does not pass, the court cases will continue, and a real challenge on Charter grounds will eventually end up in the Supreme Court. If the Court respects the Charter, it can only rule in one way (for same-sex marriage).
No other outcome is possible. The choice is to delay the inevitable and continue harping on a divisive and unproductive issue, or put this thing to rest and get on with matters of governance that are more central to all of our lives than who we're married to.

If the CPC thinks it's going to get around any of this by either changing the Charter or invoking the notwithstanding clause, then it's dooming itself to being lost in Alliance territory for the forseeable future.

Monday, 24 January, 2005  
Blogger PR said...

Yo Mr. Anonymous: If it's so perfectly obvious that a right to gay marriage exists within the Charter, why then did the Supreme Court refuse to answer the reference question? Was it a very early April Fool's joke?

Monday, 24 January, 2005  
Anonymous Anonymous said...

I'm sure you've read the decision and have also read various explanations of why the Supreme Court refused to answer question 4 (is the same-sex requirement in civil marriage legislation consistent with the Charter?). Your "Yo, Mr. Anonymous" tells me your question is more of an argumentative challenge rather than a request for information, and I'm sorry, but I'm not interested in the least by that.

Tuesday, 25 January, 2005  
Blogger PR said...

Thats funny. For someone who is so utterly convinced that a right to gay marriage exists within the Charter, you seem strangely reluctant to explain why it is that the court did not find it.

Tuesday, 25 January, 2005  
Anonymous Anonymous said...

No, you don't find that funny at all. You're just spoiling for a fight, where we all get to be bored by another endless go-around revisiting the same old issues. Sorry. Charter rights = same-sex marriage. End of story.

Tuesday, 25 January, 2005  
Blogger PR said...

Thats funny; the Supreme Court doesn't seem to agree with you. But I guess that an "anonymous user" on a blog is more qualified then is the Supreme Court to interpret the Charter, hmmmmm?

Wednesday, 26 January, 2005  
Blogger Joel Fleming said...

"Mr Harper imagining a Liberal plot, a slippery slope, to invest the nation with polygamy"

I'm wholly in favour of gay marriage. Polygamy too, I suppose, if you pressed me on it. But how the hell did the evil Conservatives get a government agency to push polygamy to the forefront of public debate?

Ottawa Citizen:"Polygamy jumped into the news Thursday with word that Status of Women Canada, a government agency, was seeking research papers on the effects of polygamy. "

Wednesday, 26 January, 2005  
Anonymous Anonymous said...

"Thats funny. For someone who is so utterly convinced that a right to gay marriage exists within the Charter, you seem strangely reluctant to explain why it is that the court did not find it."

*sigh*...I really don't know why I'm doing this, but I have this "thing" about responses to anything I say sitting there, like milk left out on the counter. Someone has to put it away, or it will continue to spoil, and make the whole kitchen very smelly.

The Supreme Court did not "find it" one way or the other. They declined to answer the question. Read this over, if you have trouble understanding it. What the Supreme Court did say, categorically, is that, since the government did not challenge the provincial courts' findings that the existing marriage legislation is unconstitutional, then it assumes, absence to the contrary, that this was the government's position. So, the government now has to take a position, one way or the other. That's Parliament's function.

This doesn't say anything about whether the Supreme Court will rule in favour of marriage legislation that runs counter to the Charter (...if the bill is defeated, for example). We all know it won't.

....and I'm "Mr. Anynymous" for the time being because I don't like registering for anything. If you think my anonymity is significant, then I'd suggest you're running out of anything interesting to say.

Wednesday, 26 January, 2005  
Blogger PR said...

Very interesting, Anon-Boy. You have a certain flair for presenting banality disguised as innovation. I ain't buying.

We all understand that the court's refusal to answer the question returns it to Parliament. That is obvious. What is not so obvious is why the court refused, and what this tells us about how the court may rule on the matter in the future.

You already have your answer: Your mere assertion that a right to marriage exists within the Charter waiting to be found by the court [if, incidentally, you object to the use of "find" in this context, try reading some of the court's Charter jurisprudence]. But if this is so obvious, why did the court refuse to answer the question? This is all the more perplexing given the amount of precedent established by lower courts prior to the Supremes' refusal.

Assert all you like. The court's behavior to this point suggests that the constitutional status of gay marriage is anything but certain.

Thursday, 27 January, 2005  
Anonymous Anonymous said...

(Another anonymous poster)
Perhaps you should read the actual ruling they released regarding the fourth question. They make the rational in declining it quite clear, and it was not, contrary to your opinion, that they felt it was parliament's perogative to decide.

As explained in the ruling: the government failed to appeal any of the eight lower court rulings to the Supreme Court. The question, however, essentially asked the same question that the lower court rulings already answered. The court realized that in answering the fourth question there was the potential that the legal standing of same-sex marriage would be greatly confused rather than clarified. If the Supreme Court said that no, defining marriage as solely between a man and a woman is not unconstitutional, they would be disagree with the lower courts. If they did so in hearing an actual appeal, their ruling would be binding; however, this is a non-binding ruling and thus would not over-ride the lower courts' rulings.

That is the reason, clearing the outlined in their ruling if you care to read it.

Thursday, 27 January, 2005  
Anonymous Anonymous said...

"Very interesting, Anon-Boy. You have a certain flair for presenting banality disguised as innovation. I ain't buying."

That's because you're an idiot. I can't believe anyone would take the time to string together a sentence as useless as this.

...anyway, this has nothing to do with the topic at hand, but what are we, as a society, going to do about discourse as coarse as this? You post something, and some mouth-breather comes along and starts calling you "Anon-boy" and decides he "ain't buying it". No facts, no knowledge, not even the least indication that he's read the decision we're arguing about, but nevertheless, he'll tell you you're full of it.

Sorry to stink up your blog, Upper, by indulging this miscreant, but after yesterday's 5th Estate on the degredation of public discourse (...where it was reported that Ann Coulter decided to believe that Canada had sent troops to Vietnam and would not be contradicted), I'm starting to think the abysmally stupid are becoming the dangerously insane. At what point do we decide these people have got to be stopped?

Thursday, 27 January, 2005  
Blogger PR said...

Wow! You are edgy.

I would reply at length, except that I am tired of cowards who sling words like "idiot" out from behind a cloak of anonymity. In the meantime, it should be noted that Anon-Boy (ooh, that name does annoy him) can't seem to explain why it is that the Supreme Court refused to answer the last reference question when it is supposedly so patently obvious that a right to same-sex marriage exists within the Charter. What a shame.

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