By H. Grant Timms

Peter MacKay’s announcement late last month that he would not run for re-election in the fall was sudden and unexpected – he had, after all, only just filed his nomination papers. Mr. MacKay’s decision not to run followed the departure of other Harper right- and left-hand men (together with some other appendages). Thus, media talking heads were intent on making the MacKay exit into something significant for the Conservative Party. Opinions varied. Perhaps, they said, the departure was an indication that Mr. MacKay, like many of the other departed, believed that the party was destined for a good thumping in the fall election. Others worried about what would happen now that MacKay’s ‘voice of moderation’, a truly conservative voice in a neo-liberal regime, was gone. This is not to say that MacKay ever had been a “Red Tory”; those kinds of Tories, such as David Orchard —disparaged as a “prairie socialist” by Mr. Harper — were long gone and forgotten.

Andrew Coyne (30 May 2015, National Post) offered another view. In Coyne’s opinion MacKay’s departure is not significant, in part because MacKay’s contributions to the government were not significant. In this MacKay was no different than most other Ministers, regardless of portfolio. The government is run out of the PMO. Ministers’ chief function has been to serve as shills for PM’s policies. They are there to insulate him, to take the hits from the opposition and media, and to allow the PM to take maintain a position of plausible deniability (see the Duffy Senate scandal). Rather than making independent contributions and running their own ministries, loyalty to the PM has been the priority in and currency of the Harper government.

Otherwise, ministers are insignificant.

I can think of no better motivation for Peter MacKay to depart the party and politics than this.

Mr. MacKay was given three high profile cabinet posts, first Foreign Affairs, then Defence, and finally Justice, but appearances can be deceiving. That he was given these posts has often been attributed this to the fact that he was (albeit briefly), the leader of the PC party and was instrumental in the PC merger with the Harper-led Canadian Alliance in 2004. Mr. MacKay proved his mettle as a loyal follower by stepping aside and refusing to contest Harper for the leadership of the merged party. MacKay, then, was something of a king-maker. Speculation was that being given high profile posts was the price MacKay demanded for his loyalty.
The reality proved the inverse.

Aside from a couple of scandals, Mr. MacKay made little impact at Foreign Affairs and Defence. But perhaps he could have made an impact at the Department of Justice. After all, the law was his bailiwick. Before politics he had been a Crown Attorney. He gave as his major reason for getting into politics a concern with the justice system and its treatment of victims. Mr. MacKay, then, had some concern for the most vulnerable, and wanted to see the system recognise their needs, and treat these people with more equity. Perhaps there was a bit of Red Tory in him after all.

Yet the highlight (or lowlight, depending on one’s point-of-view) of Mr. MacKay’s time at Justice has been a needless and nasty dispute with the Chief Justice, the passage of bills that compromise the Charter and grant more power to government, and defeat no fewer than eight times on Charter challenges — and the eight do not include bills C-24 and C-51. A number of these pieces of legislation effected those among the most powerless and vulnerable. Most notably the government sought to perpetuate a ban on doctor assisted suicide for competent yet ‘irremediable’ patients. The government lost the case, but has procrastinated in following the Court’s order to craft new legislation.

In addition, there is the Edgar Schmidt case against the DOJ. Mr. MacKay inherited this issue from his predecessor Rob Nicholson. Put overly briefly, Mr. Schmidt, a special advisor and general counsel in the DOJ’s legislative branch, had, on December 14, 2012, filed a claim against the government. Citing Charter provisions, he stated that the Minister of Justice was obligated to serve notice if any new bill violated or was inconsistent with the Charter. However, not only was notice not being served, he and his colleagues at the DOJ were told not to inform the Minister even if there was as much as a 95% chance that bills violated the Charter. The day after filing his claim, Mr. Schmidt was suspended, without pay, a suspension Mr. Schmidt has challenged. Arguing against Mr. Schmidt the DOJ representative Alain Préfontaine stated that legal opinions always differed, and noted that the (then) Minister Rob Nicholson was a lawyer himself and could form his own opinions on whether legislation complied with the Charter or not. Préfontaine’s argument missed the point, of course. Even if the Minister exercised his prerogative to dispute the DOJ’s findings this in no way relieved him of the obligation to serve notice of the DOJ’s opinion. Moreover, surely a Minister would want to know what the DOJ’s findings were, even if he ultimately disagreed with them. A Minister would want to know, that is, unless his opinion was not needed, unwanted, insignificant, or irrelevant —as the order not to inform certainly implies.

Mr. Schmidt’s case suggests that the normal vetting process has been overturned, and replaced by another. Just what this is remains a mystery, and the government has steadfastly refused to explain.

Perhaps it is the case that Mr. MacKay had no objections to any erosions of the Charter, or to being left out of the vetting process, to being uninformed regarding the DOJs opinion on the Charter compliance of legislation. Perhaps he accepted the whole with a shrug; perhaps he was a vigorous proponent. Even if he was not, one will readily grant that Mr. MacKay, while Minister of Justice, was unlikely to stand in his place and critique his own government. He was not about to publically voice a concern that some other element of government, such as the PMO, was interfering in the work of the DOJ. He was not going to stand in his place and say democracy and transparency were being suborned. He was not going to complain that Ministers of the Crown had been rendered insignificant.

However, it is often the case that actions speak louder than words. Perhaps Mr. MacKay has said all he needed to say on these matters by announcing that he will not run for re-election in the fall. In doing so he has perhaps taken the first step toward making himself relevant again.

[Photo Credit: PMO]