Alpha Flight and Canada: The Leader of the Opposition

In Alpha Flight: Fear Itself #2 the Unity Party led by the new prime minister, clamps down on the rights and freedoms of Canadians. In AFFI #1, we learn he can do this because parliament has passed the Emergencies Act, 2011, which suspended the Charter of Rights and Freedoms. In AFFI #2 he goes even further:

(All images from Marvel's Alpha Flight: Fear Itself #2, 2011)

Here the police (or military) enters the residence of the Leader of the Opposition and arrests him. The comic makes it clear this is going too far, but that didn't stop WGTB from asking: is this legal?

Let's first start with who the Leader of the Opposition is and what they do. Quite simply, they are the leader of the party (or coalition) with the second most seats in the House of Commons and the leader of a ‘government-in-waiting’. How they came to this role is varied – maybe through a lost election or by their political party – but they are standard bearer of the opposition in parliament. In Canada, they are often sworn in as Privy Councillors, which entitles them to see confidential government documents, but they are never part of the government.

Leaders of the Opposition, like other parliamentarians, are protected by parliamentary privilege and to learn what this is, we must look to 1867 and the BNA (Constitution) Act. Section 1 created a constitution ‘in likeness to that of the United Kingdom’, which gave Canada a parliament, while section 18 detailed the privileges of its members:

The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.

Of course, this doesn’t mean parliamentarians have blanket protection from the laws of Canada. Indeed, the Supreme Court’s judgment in House of Commons v Vaid [2005] (using Harvey v New Brunswick (Attorney-General) [1996]) held there are limits to privilege and s.18 did not create 'enclaves shielded from the ordinary law of the land’ such as the Criminal Code or the Human Rights Act.

But the Leader of the Opposition has long been afforded a right to vocally oppose the government. The Bill of Rights of 1689 guaranteed freedom of speech for parliamentarians, and subsequent common law decisions have focussed this idea. Thus, the scene protrayed in AFFI #2 of a government arresting the Leader of the Opposition would be an illegal act. But to take the point further, let’s present our readers with an imaginary scenario. Let’s say the UP government put forth legislation in the House of Commons – let’s call it the Opposition to Government Illegality Act, 2011, which makes it a criminal offence to oppose the government. Would it be successful? WGTB says no and here’s why.

Firstly, the Leader of the Opposition would speak and vote against the bill, thereby creating media attention and possibly opposition from government MPs. He may have supported the government on the Emergencies Act, 2011 but it is doubtful he would support an act that gets him arrested. Secondly, the Senate of Canada would have to debate it and the honourable senators are not accountable to the Prime Minister, nor are they likely to be members of the new Unity Party. Thirdly, the above mentioned provisions of the Constituton Act, 1867 and the Section 3 ‘Democratic Rights’ provisions in the entrenched Charter of Rights and Freedoms, (which are untouchable by the Notwithstanding Clause) would be solid grounds for Judicial Review. Because of this, it is highly unlikely the law would remain on the books for long. Finally, we must remember that Canada is a monarchy and consists of the Queen-in-Parliament, represented by her Governor-General who is the Commander-in-Chief of the Canadian Forces. Because of this, legally speaking the G-G can step in, using his ‘reserve powers’ to stop the prime minister. This would be the most unlikely of scenarios, but we are dealing with a comic book story after all!

So there you go. A little talk about Alpha Flight, law and parliamentary privilege. Like our last Alpha Flight and Canada piece, WGTB is not trying to be a supercilious fanboy here; rather I am hoping to educate about Canada using the medium of comic books. Scattered throughout are some legally focused panels from AFFI #2 because we are enjoying the series so much.