The Unlikelihood of an NDP-Liberal Merger

Since the passing of former NDP leader Jack Layton, there has been a torrent of speculation about the future of the NDP. This, in turn, has led to significant chatter as to whether we will see the two main opposition parties – the New Democrats and Liberals – join under one banner and form one left-of-centre opposition to the governing Conservatives. I do not believe this will happen and this brief article will outline the main reasons why.*

(Centre Block of the Canadian Parliament. The Prime Minister's office is one of the corner windows. Might we see a Liberal-Democrat there anytime soon? I suspect not.)

To begin, the histories of the parties are too different. Unlike the Reform/Canadian Alliance and Progressive Conservative parties whose merger in 2003 formed the Conservative Party of Canada, the NDP and Liberals have not been under the same tent for 50 years, if ever. Indeed, the Liberals, going back to 1867 and the NDP going back to 1961, have for decades cultivated their own identities and often been at odds. Yes, Liberals move left when Conservatives govern (and almost universally do this while campaigning), they are still the party that balanced Canadian finances using massive spending cuts in the late 90s, and have influential right-of-centre connections to the business and banking elites of Toronto and Montreal. This is anathema to the traditional NDP base of trade unions, western Canadian farmers and their newly cultivated base of socially democratic Quebecois and inner city voters.

(Lester B. Pearson was the first Liberal prime minister to encounter a united NDP on his left flank)

Secondly, the logistics of the merger will be very difficult. Currently, with 102 seats in the House of Commons, the NDP are the Official Opposition. But until this year's breakthrough, the NDP had only cracked the 40 seat barrier once (1988) and had never been serious contenders for official opposition status. Indeed, one could argue that until Jack Layton's leadership, it had always been a two horse race between the Liberals and the various right-of-centre parties – the one exception being the Bloc Quebecois when it formed the Official Opposition in the 35^th Parliament [1994-1997]. However, were the two Progressive Conservative members sitting with the Reform members, the right-of-centre parties would have tied the Bloc for 54 seats and perhaps formed the Official Opposition.

So while Jack Layton was always more popular than his party, we can nevertheless expect the NDP to try to leverage their 102 seats and opposition status into senior-partner status during merger talks. This will be very difficult for the Liberals to accept because they will see their long-time status as the ‘Natural Governing Party’ as their ticket to the senior-partner seat. This will lead to an impasse and an eventual maintenance of the status quo. I suppose a merger of equals could be sought, but in party politics mergers almost always happen with a junior and senior partner. Looking at recent Canadian politics, one need only see how the Progressive Conservatives and Canadian Alliance needed each other, but there was no question the Alliance was in a better position and it was their leader who became Prime Minister.

Relative parliamentary newcomer Justin Trudeau has gone on record of saying he would listen to the merger overtones – as has NDP stalwart and possible leadership candidate Pat Martin. Unfortunately for them, both will ultimately be disappointed. The NDP and Liberals are just too different and even their contempt of Stephen Harper will not be enough to overcome these differences. This is why we will not see a merged ‘Liberal-Democratic Party of Canada' in the near future.

*In the interest of full and complete disclosure, I am a card-carrying member of the Conservative Party. I do not, however, count myself as being mean-spirited towards the political views of the NDP or Liberals and as such have aimed to write a reasoned and thoughtful analysis about an important issue in Canadian political life.

Jack Layton 1950-2011

Canada has lost a good man.

Jack Layton, leader of the New Democratic Party of Canada, has passed away after a battle with Cancer. Earlier this summer, Avenue and Ridley wished Mr. Layton well and gave background as to how far he had taken his party since becoming leader in 2003. We must now take the unfortunate actions of addressing his passing.

Jack Layton was a great Canadian. The son of a Progressive Conservative minister and a great grand-nephew of a Father of Confederation, Canada was in his blood. He had an unparalleled understanding of the French and English aspects of Canada, and while his social democratic policies did not sell in parts of the country, he was exceptional at connecting with everyday Canadians and was far and away our most likable politician. With regard to his political opponents, he was also well liked, and one need only recall this exchange between the prime minister and Mr. Layton to see this civility and respect.

Having worked for the Conservatives, my personal history with Mr. Layton is limited, but there is one story to tell. While travelling (in Economy class) on a flight between Ottawa and Toronto, I noticed Mr. Layton one row over. It was a hot July day and everyone in a suit was wearing one of those “Damn this Ottawa humidity” frowns. Well, everyone but Mr. Layton. He wore a smile with the cordiality of a 19th century butler, but the dignity of a liberating General. Once we landed, two students walked up the aisle and asked to speak with him. He remained in his seat and greeted these young people like they were old friends. The three then walked away and when I arrived at the aircraft door, he was already introducing his new friends to an NDP colleague.

The cynic might say he was fishing for votes and volunteers, and to an extent this is true. But the look in the eyes said something else. Jack Layton genuinely cared for these young people and wanted to give them as much time as possible. In matters like this, politicians of all stripes would do well to emulate his example.

Cancer is a dastardly villain and today claimed another life. Jack Layton will be missed and all Canadians will long appreciate his service.

Legal History in Southwestern Ontario

This past week I took a trip up to Southampton, Ontario on mighty Lake Huron. Up and back, we passed through many small towns – many of which undoubtedly look similar to how they did a century ago, except for the striking cenotaphs raised to memorialize the young men sent abroad during the great wars of the 20^th century. With that in mind, I begin today's blog entry with two such cenotaphs, one in Chesley and the other in Harriston.

(The cenotaphs of Chesley [upper] and Harriston [lower])

The trip had much to see with regard to Canadian legal history as well. My first stop in Chatsworth, now a small bedroom community for Owen Sound, was the birthplace of Nellie McClung, an MLA for Alberta and a famous women’s rights activist. In the late 20s, McClung became part of the ‘Famous Five’ who launched Edwards v Canada (Attorney General) [1928] SCR 276 and [1931] AC 124 better known as the 'Persons Case'.

(Chatsworth, Ontario)

It all started in 1916 when women were asked to leave a prostitution trial. Incensed by this, jurist Emily Murphy asked that the Alberta Attorney-General for a court for women by women and the Attorney-General agreed. This was then challenged by a lawyer who claimed that women were not qualified persons according to the British North America Act, 1867 and the case went to the Alberta Court of Appeal whose judgment held women were indeed qualified persons. Murphy wanted to take this national and submitted her name to be named a Senator in the Parliament of Canada. When this was rejected by Prime Minister Robert Borden, Murphy and her fellow appellants, Henrietta Muir Edwards (Vice-President for the province of Alberta of the National Council of Women for Canada); Nellie L. McClung, Louise C. McKinney and Irene Parlby (all of whom were members of the Alberta Legislative Assembly) petitioned the Governor-General to submit the question to the Supreme Court of Canada. This was done with Edwards v Canada (Attorney-General) [1927] SCR 276 in which the Supreme Court held women were not ‘qualified persons’ for the Senate. This was subsequently appealed to the Privy Council in London (as the Supreme Court of Canada was not yet the court of last resort for Canada) where the judgment was reversed in Edwards v Canada [1931] AC 124. Here the Lords concluded that the word 'persons' in s.24 BNA Act includes both men and women.

Besides the obvious point of holding women as qualified persons, Edwards is also remembered for Lord Sankey’s Living Tree Doctrine which held the constitution was like a 'Living Tree’ and that constitutional interpretation is organic and should be read in a broad and liberal fashion so as to change with the times. This would significantly impact later Canadian constitutional and administrative law.

The second site I stopped was the birthplace of Canada’s 13^th Prime Minister, John George Diefenbaker in Neustadt, Ontario. Diefenbaker, the son of a school teacher and the descendant of German immigrants, moved to the Northwest Territories (Saskatchewan) in 1903 where he was later educated at the University of Saskatchewan. He was called to the bar in 1919 after a short time in Europe, and started work as a small town lawyer. Elected to the Canadian parliament in 1940, Diefenbaker would become leader of the Opposition in 1957 and later that year Prime Minister of a minority government. After three decades of Liberal governance there was little front bench strength for the Tories, but this did not stop a massive Diefenbaker majority in 1958. His government would be moved back to minority status in 1962 and was eventually sent across the aisle in 1963.

(The Diefenbaker home)

In 1960 the Parliament of Canada passed the Canadian Bill of Rights. Bills of rights are a longstanding tradition in the Anglo-American legal world, going back to Magna Carta and Diefenbaker, having been influenced by the Saskatchewan Bill of Rights and numerous cases regarding government power, sought to give Canada one of its own. This Bill of Rights was not entrenched however, and as the product of a supreme parliament could be changed at any time. This is one of the reasons why many in the legal community see it as a failure, while supporters of a supreme (sovereign) parliament see it as a true inheritance of Canada's parliamentary tradition. But that is a subject for another day.

So with that, I concluded my little trip of parts of south western Ontario. It was a great little summer adventure and brought us a little closer to Canada’s rich legal history. We hope you enjoyed the trip!

(Lake Huron)

Jack Layton

Yesterday we learned that Jack Layton, leader of the New Democratic Party of Canada and Leader of the Official Opposition in the House of Commons, will temporarily step down from his post due to an additional diagnosis of cancer.

Jack Layton is a dynamo of a politician. This May, while using a cane due to an earlier hip operation, Mr. Layton managed to do what no previous federal New Democratic leader had ever done -- take his party to Official Opposition status. This amazing feat -- the likes of which legends Tommy Douglas, Stephen Lewis or Ed Broadbent could not do -- was done by winning an amazing 59 out of 75 seats in Quebec and virtually eliminating the Bloc Quebecois in that province. Many more seats were won in former Liberal strongholds such as Toronto, which is an additionally amazing feat. All in all, the 41st Canadian parliament is the first to have a social-democratic opposition and its 103 NDP seats make that party the largest opposition party in years.

Avenue and Ridley would like to wish Mr. Layton a full, complete and speedy recovery. We rarely share his views, but as a fellow cancer survivor, we have never felt closer to him than now. Good luck, Jack. You can beat this!

Neither the Time nor Place

Five days have passed since the “Stop Harper” episode during the Speech from the Throne in the Senate of Canada. The responses have been varied and, upon reflection, AR would like to comment on the matter.

We believe that Ms. Bridgette DePape's protest was done at neither the correct time nor in the correct place.

It Insults the Senate and Crown

Her actions insulted the Senate and the Canadian Crown. The Senate Page Program is an important initiative and while working in political Ottawa, AR came to know the Usher of the Black Rod, the Senate officer who leads it. He was immensely proud of his pages because of the non-partisan work they do. While Ms. DePape has repeatedly stated she did not mean to disrespect her colleagues, this program will undoubtedly now face considerable scrutiny and she has done exactly that.

AR suspects this episode will also call into question the House of Commons Page Program too. Having met a number of Commons pages at both graduate school and while working as a political staffer, AR was always impressed at how bright and motivated these folks were. They knew their politics, had refined political opinions, yet were trusted by partisans to do their job. Surely these programs will survive; but what backlash will they now face?

It Insults the Opposition

Ms. DePape's actions insult the opposition parties of Canada, especially the New Democrats. The NDP, the most left of the opposition parties, has gone 14 seats in the House of Commons in the 37^th parliament (2001-2004) to Official Opposition status and 103 seats in the current parliament.

But they have not done this with gimmickry. No, they've done it with old fashioned political activism – rooted in targeted and aggressive fundraising and intelligent leadership. The Green Party has done likewise, while the Liberal Party of Canada, Canada’s ‘Natural Governing Party’ has become a rump of its former self through complacency and a lack of self-evaluation.

It Insults the Arab Protesters

In Ms. DePape's subsequent press release and television interviews, she remarked how Canada needed an ‘Arab Spring’. This is a ridiculous notion. Her 'counterparts' in Egypt, Bahrain, Syria and elsewhere face despotic regimes which may torture and kill them. Yet, in a valiant attempt to end this, protesters have self-immolated, stared down tanks and assault rifles and gone to war against hardened regimes. Canadians have never faced such opposition, and while the first-past-the-post system is not perfect, it is here and on May 2nd and the people spoke.

Ms. DePape broke an oath to serve the Senate in a nonpartisan fashion . She has always been free to work for change with via the Canadian Centre for Policy Alternatives, NDP, Liberals or Greens. This would have been the correct time and correct place to do things.