1999 Recipient of the Award for Excellence in the Cause of Parliamentary Democracy

Introduction by Peter K. Large at the 1999 Churchill Dinner

As Sir Winston Churchill himself put parliamentary democracy ahead of partisan politics when he crossed the floor twice and changed hats a number of times, our Award recipient this evening showed leadership in parliamentary democracy in the same spirit as Churchill. He put the unity of his country ahead of his own province, particularly in 1990 in the leadership he demonstrated in the days leading up to the Meech Lake Accord. Frank McKenna, in his address to the Newfoundland legislature, urged their support, without which it would be the first time in modern history that a country has been lost without firing a bullet.

Acceptance address by Frank McKenna at the 1999 Churchill Dinner

For a large part of my career, really I had no opposition [referring to his 1987 election victory winning 58 of the 58 seats] and could hardly be said to have advanced the cause of parliamentary democracy in a significant way. In fact, Brian Mulroney said that, after the unification of Germany and disintegration of totalitarianism in the Soviet Union, I was one of the world’s last remaining despots.

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I confess to having been an early [Churchill] aficionado – and my fascination went even a bit further. Always a bit insecure in my own ability to express myself, I spent time virtually memorizing some of his most famous utterances. Just consider this reference from Hansard back in 1986 when he saved my skin.

Back then, I was being attacked by an honourable member from the other side, named Mr. Clarke, and he said, “Mr. Speaker, the approach the leader of the Opposition” – that was me – “is taking with respect to this particular subject puts me in mind of a statement that Winston Churchill once made. Churchill said to a member opposite that he a great admiration for a manly man and some admiration for a womanly woman, but he could not abide a boyish boy.” Being somewhat youthful looking at the time it was a fair criticism, and there was a lot of tittering and laughing. But I was able, with my memorization of Winston Churchill, to come back saying that Winston Churchill also said of the member opposite that he was a modest man, with much to be modest about.

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I have a single issue that I hope you will think about and reflect on after this evening is over, and which in my view undermines in some small way parliamentary democracy, which is really the subject of the mission statement of your Society, and that is what I consider to be a trend, somewhat unabated at this time, to see the replacement of parliamentary decision-making in Canada with judicial decision-making.

I have to confess to you that throughout my career, both as a politician and a lawyer, I have been a firm opponent of the idea we should establish an open nomination process and selection process for the highest levels of the Canadian judiciary, and I know my remarks tonight would reflect probably some controversy even with people within this room, but for me it represents a real revolution. I have come to believe that we in fact should pursue exactly that.

What at one time I felt was an unwarranted Americanization of our judicial system, I believe now is a matter of necessity, and I have come to the view that we need to change our perspective on the appointment of judges in our country. We have had a number of decisions in recent months that, I have come to believe, have all brought character and definition to the argument that I am making:

1. R. v. Marshall, in which the court ruled that treaty rights from some 250 years ago extended in a certain fashion. That decision was later reformulated in such a way that I think a lot of people found greater comfort in, but the end result was the same, and that is that we are seeing in public policy – very important public policy – being made by people who are unelected and who are not responsible to the electorate for the views that they express. The ramifications in our part of the country have been extreme – I think more extreme because of the process arrived at to achieve that public policy. If one could argue for some type of evolution to that type of regime… those types of decisions should come about in an orderly process for formulating public policy.

2. Reanne v. Alberta is another case in point… [regarding] sexual orientation; while agreeing with the end result, I do not agree with the process [that saw] the Supreme Court of Canada specifically repudiate the expressed will of the Legislature of Alberta on this issue… my argument to you is that parliamentary democracy is somewhat undermined by the manner of achieving a decision and I make the representation to you that there is a more orderly way to do it.

3. The Federal Court ruling on the pay equity dispute in Ottawa represents an even more serious case. Essentially 3.5 billion dollars of your and my money has been allocated to a specific group and whether that decision is right or wrong I don’t think is as important as this: the allocation of that amount of money, which is one of the largest expenditure decisions in Canada to date, a decision that should be made by lining up all of the important priorities side by side and choosing on some basis of public need which of those priorities is most important, not choosing one out of the blue and in the abstract.

I am not making the argument that this is simply judicial activism gone wild, because it is more than that. There is some blame that lies on both sides of the table. In some cases it even represents an abdication of responsibility by the elected people… because they do not have the political courage, if I can put it bluntly, to make the decision that should be made. We should have some sort of judicial nomination process by which we can see the colour of the eyes of those people who are going to be making these decisions on our behalf. That is my case.

To the refrain some make about leadership in the country being in decline - and those that say they would much prefer judges to make important decisions - I say the country and these provinces have been represented by high quality people who have been honourable in every respect. I have had the pleasure of sharing power and politics with a lot of people at the top levels of leadership in this country over 15 years. In this province, Premiers Peterson, Rae and Harris – I respect each and every one of those who have performed under extraordinarily difficult circumstance to the best of their ability, and when the occasion demanded that they put aside their political partisanship and serve the national cause, or some other cause on a non-partisan basis, they were always equal to the challenge.

I served with Robert Bourassa and Lucien Bouchard. These are fine people. I remember challenging Robert Bourassa at one stage because he frustrated me so much at times earlier in his career about his expressed ambivalence toward Canada. I just said, “Robert, why don’t you just say to people in the country you believe in Canada, you believe in federalism and stop being so namby-pamby about it?“ And he said, “Frank, it is easy for you today, but I fought the battle during the FLQ crisis. I resisted the demands of people who kidnapped Pierre Laporte, and I’m the one who walked down the hall and knocked on the door of my best friend and told his wife that he was dead. So don’t tell me about the price I paid for standing up for Canada.“ I have never forgotten that. Robert Bourassa was a very fine Canadian.

I have served with Gary Filmon, and I have served with Roy Romanow. I have served with premiers right across this country whom I think that, whatever their political stripe, have been honourable, decent and confident and have done the job to the best of their ability. And I have seen acts of courage that people do not even acknowledge.

Back east, we had John Savage in Nova Scotia, and Kathryn Caulbeck in PEI – both of them progressive people – [who] walked into difficult situations and took the job of dealing with them even though it went against all of the things they wanted to do and ended up unceremoniously leaving office because the electorate didn’t want them to be there. But never once did they shirk their responsibility to do what was right for their electorate.

And at the national level, I’ve had the chance to serve with at least two Canadian Prime Ministers – Brian Mulroney and Jean Chrétien – and there is nothing I can say except to express admiration for what they did. For Prime Minister Mulroney, it was an act of political courage to take on the Free Trade Debate. He did not shirk from his responsibility because he believed in it. Similarly, he had the political courage to confront the opponents and deal with an issue he thought was important – bringing in the GST. Our own Prime Minister now, Prime Minister Chrétien, has dealt with the debt and the deficit in this country, which is a colossal issue that had to be dealt with and not easy to deal with because it means that you have to often fight with the more progressive wings of your party. And yet, he chose to say the course, and as a result Canada is now facing a difficult, but much easier, decision of how to allocate a surplus rather than the considerable deficits that we ran up.

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Now let me close by saying this: that even good political leaders lose. They lose for good reasons.

Winston Churchill in my view is the man of the century. There can be no doubt that the moral leadership he offered to Great Britain and to the free world during the Second World War was instrumental in our success, but never forget that in the first election in which he faced the people after the war, in July of 1945, he was defeated.

That was the will of the people. They made the choice they wanted – a different leader for different times, different policies for different times – and they had the right to change that leader and to change that policy. With judges – with all the respect in the world I have for them – the public has no such right.

Politicians must stand for election. Judges don’t.

I rest my case.