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.

Alpha Flight and Canada: The Charter of Rights and Freedoms

Recently, WGTB picked up Alpha Flight #0.1, Alpha Flight: Fear Itself #1 and Alpha Flight: Fear Itself #2. Number 0.1 mostly consisted of an intense battle and a re-introduction to the AF characters while #1 and #2 begin to craft, what is already looking like a great story. So, while this blog entry was originally intended to be a review of the Alpha Flight: Fear Itself comics, while reading #1, we can across a very interesting panel that took it into an entirely different direction. As such, this is not a review of the comic: but WGTB would like to recommend it because it's very good so far.

In AF-FI, the Canadian people have elected a new ‘Unity Party’ government. This political party, we are told, is neither Left nor Right, but seeks a ‘new way’ to govern Canada. We soon learn -- from both #1 and in a follow-up interview with Fred Van Lente and Greg Pak -- that Canada is about to be taken into an ‘interesting and dangerous’ direction. Number 1 begins with Vancouver under siege -- this time not by crazy hockey fans -- but by Nerkkod, an aquatic monster. Alpha Flight eventually wins but after the successful battle, the new prime minister makes a startling announcement:

(Above images from Marvel's Alpha Flight: Fear Itself #1, 2011)

WGTB was struck by these panels and immediately asked ourselves if this was even legal. Clearly, the creators intent is to make the prime minister ultra powerful by imposing martial law and suspending the Charter of Rights and Freedoms. But in the real world could the Prime Minister of Canada do this? To answer this question we must examine the history of the Charter of Rights and Freedoms as well as how it functions in the current day.

(The Centre Block and the Prime Minister's office in Marvel's Alpha Flight Vol.1 #13, 1984. The actual office is much less grand)

Unlike the Bill of Rights of the United States, of which many WGTB readers are familiar, the Canadian Charter of Rights in Freedoms is a relatively new document – having only been enacted in 1982. Prior to this, Canada did not have entrenched rights like our American neighbours, but like the United Kingdom, had a parliament that was supreme which made statutes that were only interpreted by judges and not struck down. This system was not without safeguards, but these were mostly vigilant judges and opposition parliamentarians working with either common law decisions or constitutional conventions (most of which were also inherited from the United Kingdom). For instance, the ancient rights of Magna Carta or the Bill of Rights of 1689 or legislation concerning British North America such as the Quebec Act, 1774 or the provisions for Responsible Government in Nova Scotia (1848), while not entrenched, had substantial importance. In 1867, the year associated with Canada’s formation, the British North America Act was passed in Westminster which united the three colonies of Canada, Nova Scotia and New Brunswick into four provincial and one Dominion governments. Responsibilities of state were divided between two levels of government – both which were sovereign in their areas of jurisdiction. London freely gave up rights to legislate without Canada’s consent with the Statute of Westminster in 1931 and shortly afterwards it has held that Canada, while not legally independent, was in Lord Sankey’s words “in enjoyment of the full scope of self-government.”

After the horrors of World War II, a wave of human and civil rights agreements and legislation swept across the western world. In 1960, Conservative Prime Minister John Diefenbaker’s government passed the Canadian Bill of Rights. This, however, was only a federal statute and could be repealed by the Canadian parliament. It also did not apply to Canada’s provinces.

Things changed drastically in the 70s and 80s when Prime Minister Pierre Trudeau sought to patriate the Canadian constitution and completely severe all legal ties with the United Kingdom. (Queen Elizabeth II would remain as Sovereign, but as the 'Queen of Canada'.) When the Supreme Court held that convention required a substantial degree of provincial consent, Trudeau used the negotiations with his provincial colleagues to give Canada entrenched rights that could not be taken by the federal parliament or provincial legislatures. This was a long and vexing process, but ultimately the Constitution Act, 1982 was passed with the Charter of Rights and Freedoms, as its first 34 sections. This Charter included six broad categories of rights:

Fundamental Freedoms which include: rights of conscience, religion, thought, belief, opinion, expression, assembly and association.

Democratic Rights which include: rights to vote in regular elections and annual parliaments

Mobility Rights including: the right to enter and leave Canada and reside in any province or territory.

Legal Rights relating to criminal procedure which include the right to retain and instruct counsel, Habeas Corpus, a trail within reasonable time, presumption of innocence until proven guilty, Life, Liberty and Security of the person and a freedom from denial of this unless fundamental justice is at stake.

Equality Rights which include equality before and under law and equal protection and the benefit of law; and

Language Rights which includes official bilingualism in Canada

The Charter is much longer than its southern cousin, and is a product of both the fiery negotiations and bi-jural perspectives of the politicians who created it. The English-speaking premiers of the provincial governments came from jurisdictions that had a strong Commonwealth tradition of parliamentary supremacy and many (on both the Left and Right) viewed entrenched rights with suspicion. The Quebecois Trudeau, hailing from a jurisdiction that had a Civil Law Code and a different legal history, had seen what a heavy-handed provincial government could do with parliamentary supremacy and sought to prevent episodes such that which led to the famous Supreme Court decision in Roncarelli v Duplessis (1959). The Canadian public was also overwhelmingly supportive of a Charter and because of this the premiers did not risk opposition to the idea.

Ultimately the camps settled on a compromise between entrenched rights and parliamentary supremacy. The Charter would entrench rights but its penultimate Section 33 allowed for a Legislative Override, and reversion to parliamentary supremacy if a legislature attached this Notwithstanding Clause. The Notwithstanding Clause did not apply to the mobility, language or democratic rights (which were counted as inalienable) and as such, a legislature could not use it to lengthen its existence indefinitely or limit language rights. It also had a five year sunset provision which guaranteed that if rights were suspended a legislature would have to eventually face the electorate for it.

Sections of the Charter that are subject to a legislative override include Fundamental Rights, including freedom of expression, religion, association; Legal Rights including rights to liberty and right to be secure against unlawful search and seizure, freedom from cruel and unusual punishment; and Equality Rights, which courts have determined includes same-sex marriage.

Which brings up back to Alpha Flight: Fear Itself #1 and the legality of the Prime Minister’s Emergencies Act, 2011. Strictly speaking, while the Prime Minister CANNOT suspend the Charter -- this is beyond his/her authority and would require co-operation from provincial governments -- the Emergencies Act could contain the Notwithstanding Clause in areas of federal jurisdiction, thereby making many of its draconian measures legal.

(Ottawa from Marvel's Alpha Flight Vol 1. #13, 1984 - The author once lived in one of the distant apartment buildings)

That said, things could get complicated given that policing and the courts are provincial responsibilities and the Prime Minister or the Attorney-General of Canada could very well be opposed by provincial leaders against the use of Police and Crown Prosecutors for such draconian measures. Of course, it could lead to even more trouble given that seven provinces contract their rural policing out to the Royal Canadian Mounted Police, who are ultimately controlled by the federal Minister of Public Safety. WGTB is not sure who controls Department H but it is likely this minister as well.

(RCMP with the most famous former Depertment H employee. Marvel's Wolverine Vol.2 # 34, 1990)

WGTB is a long-time lover of Alpha Flight and will continue to enjoy this Fear Itself mini-series. We did not intend to be annoying Simpsons-style Fanboy critics while writing this one – Alpha Flight exists in Earth-616 where the Canadian prime minister has as much legal power as Fred Van Lente and Greg Pak want to give him. But we hope you have enjoyed this opportunity to learn about Canadian Constitutional law and hope it has increased (or at least not decreased!) your interest in Canada’s rich yet evolving legal heritage.

(Guardian in Marvel's Alpha Flight Vol. 1 #17, 1984)

NEXT: Alpha Flight: Fear Itself #2 contained a panel where the police arrested the the Leader of the Opposition. Is this legal? Stay tuned for the next Alpha Flight and Canada to find out!