Originally published at Convivium on November 6, 2020.
Canada’s Constitution gives paramountcy to peace, order and good government (POGG), but Don Hutchinson argues bills on conversion therapy and medically assisted death prioritize progressive expediency.
As the Second Session of the 43rd Parliament started last month, the Trudeau Government promoted two bills as high priority in the legislative queue. Both make use of the Criminal Code to tread the constitutional line between federal and provincial jurisdiction. Both are presented as progressive in nature. Both are politically charged.
Bill C-6 proposes a series of new Criminal Code offences concerning “conversion therapy,” defined in the bill as “a practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce non-heterosexual attraction or sexual behaviour.”
Bill C-7 tenders amendments to the Criminal Code that would expand the availability of medical assistance in dying (MAiD), MAiD being an exception to criminal prohibitions against counselling suicide, aiding in suicide, or killing another person.
The Constitution Act 1867 places health care under provincial jurisdiction in section 92. Section 91, however, gives the federal government broad powers in regard to matters of national concern based on the provision to “make laws for the Peace, Order, and good Government of Canada” (POGG). Section 91 also itemises federal jurisdiction in regard to criminal law.
The governance concept of peace, order, and good government pre-dates our constitution, and is found in constitutions of former British colonies around the world (some with the alternative welfare in place of order). The POGG obligation was long understood, with its foundations in biblical principles, as vital for responsible government.
The premise of POGG is addressed in both Old and New Testaments of the Bible, where we can read about instances of good government and poor government.
Canada’s descriptive title and national motto are taken from Psalm 72. When the name of the new country was being debated in 1866 it was decided that Canada would be known as a dominion rather than a kingdom, republic, or other political description. This was inspired by Psalm 72:8, “He shall have dominion also from sea to sea, and from the river unto the ends of the earth.” In 1921 Canada’s official motto, as it appears on our Coat of Arms, was approved as A Mari Usque Ad Mare, “from sea to sea.”
However, Psalm 72 gave Canadians more than the concept of a dominion and a motto recognizing the vastness of our geography. It also describes concepts of POGG in the exercise of political authority.
The psalm begins with advice from King David to his son Solomon about how to provide good government:
Give the king [knowledge of] Your judgments, O God, and [the spirit of] Your righteousness to the king’s son [to guide all his ways]. May he judge Your people with righteousness, and Your afflicted with justice. May he bring justice to the poor among the people, save the children of the needy and crush the oppressor. – Psalm 72:1, 2, 4 AMP
The prayerful direction found in Psalm 72 describes what Prime Minister Pierre Trudeau termed “a just society,” one in which good government brings peace and order to all the people it governs. Wisdom and fairness are expected from our government, not preoccupation with winning and losing but regarding the well-being of all Canadians as its primary pursuit.
In his 1988 book Foolishness to the Greeks, Lesslie Newbigin, commenting on Augustine’s early fifth century A.D. Christian classic The City of God, summarizes thoughts about good government for a peaceful and ordered society:
But peace is only possible when there is order, and order depends on proper government; but government in which one is sub-ordinated to another is only right if the one who is called to govern does so for the sake of those he governs—as their servant.
Good government requires providing sound structure to Canadian society, protection and support for the people and institutions of society, and continual establishment of conditions for personal and societal flourishing.
The 19th century organizers of the new Confederation recognized the necessity for the federal government to function in a unifying capacity that would facilitate the success of each province, and subsequently each new province and territory, as well as for each and all Canadians through proper exercise of the responsibility “to make Laws for the Peace, Order, and good Government of Canada.”
Framing legislation in the context of the selected colloquialism “progressive” does not necessarily signify the instigation of progressive improvement in the life of Canadians, as might be expected under POGG. It may simply denote a progression, for good or ill.
C-6 portends to make a horrendous torturous practice, which had become commonly referred to as conversion therapy, its own crime, defining it separately from component parts already in the Criminal Code.
The bill, however, casts a broader net.
As currently worded, many genuinely fear that net interferes with parental rights, aiming to prevent parents from seeking counselling for children who are grappling with their sexual identity. The only permitted counselling is that which would not “repress or reduce non-heterosexual attraction or sexual behaviour,” and would encourage “gender transition.” Pre-teen and teen years can be awkward times. The support of psychological, emotional, and/or spiritual counsellors has benefited many children and youths in sorting out sexual tensions and questions about sexual attraction common to adolescents.
Also prohibited under the bill is the availability of non-torturous counselling for adults who want help to sort out their sexual desires because their choice is to live a cisgender heterosexual life. The reasons a person might make such a decision are theirs alone.
The Justice Minister indicated in remarks at his press conference following introduction of the bill that C-6 is not meant to interfere with parental rights or adults seeking counsel. Perhaps then, the minister will welcome proposals to amend the legislation to make those points clear for judges who may one day have to determine what the law intends.
Concerning children, the cardinal rule of POGG for parents and the state is the best interests of the child. Pertaining to adults, the Canadian Charter of Rights and Freedoms guarantees freedoms of conscience, religion, thought, belief, and opinion. All of which, I think, align with personal autonomy in seeking consultation or counsel, including clergy-parishioner and other confidential communications as endorsed by the Supreme Court of Canada in R. v. Gruenke. Bill C-6, as currently worded, disregards these obligations to Canadians.
In regard to C-7, the writing was on the wall for medical assistance in dying (MAiD) when Justin Trudeau appointed David Lametti as Minister of Justice. Lametti was one of three Liberal MPs who voted against the MAiD legislation introduced by Jody Wilson-Raybould in 2016. He described it as having too many restrictions and not doing enough for vulnerable Canadians seeking assisted death.
The decision to not appeal the 2019 ruling of a single judge of the Quebec Superior Court in Truchon c. Procureur général du Canada provided a technical legal out from awaiting the five-year review legislatively scheduled to be completed in 2021. There are similarities with the Chretien Government’s decision to not appeal judgements of courts in several provinces that had recognized solemnization of same-sex marriages. Incoming Prime Minister Paul Martin had little choice but to legalize same-sex marriage nationwide to avoid a jurisdictional checkerboard. Under the constitution, solemnization of marriages is provincial jurisdiction but defining marriage is federal.
Just how little restraint Lametti considers MAiD should have was revealed in the bill.
The Liberals’ 2015 and 2019 campaign commitments to fill gaps in palliative care, pain management, and mental health services were overstated and underfunded. Trudeau’s Disability Equality Statement has not produced its promised benefits. Bill C-7 proffers a tragic alternative by proposing to expand MAiD beyond those whose death is foreseeable.
Introducing legislation to include Canadians with disabilities or living with chronic illness, and mental illness if accompanied by another condition, as eligible for MAiD suggests the Trudeau Government places a lesser value on people who are already marginalized, and for whom Canada’s government should be filling gaps and facilitating inclusion, as promised, rather than arranging lethal injections. As several doctors and ethicists have written, C-7 transitions medical assistance in dying (MAiD) to medically administered death (MAD).
David Lametti’s 2016 objections have been met by his 2019 initiative to make MAD more accessible to vulnerable Canadians, the same Canadians who might choose life if palliative care, pain management, mental health services and disability inclusion measures were his government’s priorities.
These legislative proposals, branded as progressive, are also overtly political.
During his years as party leader, Mr. Trudeau has virtually put an end to the social conservative membership referred to as Blue Liberals, the political-centre counter to the socially liberal Red Tories. (Kudos to those Blue Liberals holding on to see if their next party leader has an interest in the historic political centre.) Red Tories still have a place in the Conservative Party, along with social conservatives, fiscal conservatives and others. The political target of bills C-6 and C-7 is to provoke division in the Conservative Party, goading SoCons and Red Tories to make contradictory public comments on the bills.
Has political expediency inspired government action? Justin Trudeau would not be the first prime minister to put politics ahead of people or POGG, but he is the candidate who gazed into our eyes and told us to expect more from him. And, we should.
The responsibility of Canada’s government is to encourage conditions for societal, institutional and personal flourishing, to consider and care for all citizens. All citizens includes people who want assistance to process personal issues of sexual attraction and people living with disabilities, chronic pain, or mental illness, as well as those living with robust health or without questions about sexuality.
Peace, order (welfare), and good government is an historic concept. Historic does not make it outdated or old-fashioned. It is, rather, a constitutional cornerstone in the foundation for responsible government.