January 16, 2009
Unravelling a constitutional crisis
Facing a disgruntled opposition intent on removing his government from power, the prime minister buys time by asking the governor general to prorogue Parliament only six weeks after his government was returned to power. Meanwhile, a coalition of opposition parties has its dreams dashed of forming a new government without another election.
The scenario would make an intriguing plot for a political thriller. But there was no fiction to the events that occurred in Ottawa last month, although the ensuing debate over prorogation and related issues that emerged from the constitutional crisis will result in at least one book. In March, the University of Toronto Press is set to release a book of essays from eminent jurists and political scientists, many of whom participated in a pair of panels in December at U of T examining the historical events that unfolded in the nation’s capital in the latter part of 2008.
Many questions have been raised over whether any constitutional precedents were set in both Stephen Harper’s and Michaëlle Jean’s actions. U of T law professor Lorne Sossin, who teaches and writes about constitutional law, is among those with several concerns over the fallout.
Never before has a Canadian prime minister sought prorogation to avoid a non-confidence vote as Harper did to stave off his minority government’s imminent defeat by a Liberal-NDP coalition supported by the Bloc Québécois.
But Jean granted him respite until Jan. 26 through an executive power given to her under
the Constitution Act, 1867, which identifies the governor general, and not the prime minister, as the individual who in effect has the most power in our political system.
“Putting so much power in an unelected ceremonial position doesn’t resonate with a 21st-century constitutional democracy,” says Sossin.
Following their two-and-a-half hour meeting at Rideau Hall on Dec. 4, 2008 only Harper spoke publicly about the decision to suspend Parliament. Jean was silent and never provided an account of what transpired behind closed doors at Government House, much to Sossin’s dismay.
Now, he would like answers to some questions. Did the governor general read the petition signed by 161 opposition MPs from all three parties calling on her to turn to the coalition to form the next government? If so, did the letter play a factor in her deliberations? Should she have read it?
And did the governor general discuss placing limits on what the Prime Minister could or could not do during the period of prorogation?
“All of these are hugely important and interesting questions that we have no answers for because there is no transparency whatsoever. We can’t make a determination of whether she acted appropriately since we have no idea why she acted the way she did,” says Sossin, who also serves as academic director of the U of T-based Centre for the Legal Profession. “That is inconsistent with where our constitutional democracy has gone in the 21st century over the notion of accountability for crucial public decisions.
“If the tradition is that the Governor General doesn’t speak about such decisions, that’s a tradition we should do away with.”
(Jean reportedly left the room during her meeting with Harper to consult with constitutional law expert Peter Hogg, scholar-in-residence at Blakes in Toronto. Hogg declined a request for an interview through a spokeswoman for the firm.)
Sossin would like to see an evolution of the convention regarding the role of the Queen’s vice-regal representative in Canada on issues regarding Parliament, such as her recent one on prorogation.
“It would not be dissimilar to a change in convention regarding powers of disallowance,” says Sossin.
“For example, provincial anti-immigration laws in B.C. were disallowed in the early part of the 20th century under this constitutional authority. But after a while there was recognition by the federal government that the credibility of federalism was being undermined through such intervention and these powers fell into disuse. In this context, the convention evolved to reflect changes to Canada’s political system.”
But constitutional lawyer Neil Finkelstein doesn’t necessarily need to hear from Jean about her decision-making process.
“She had little if any discretion and had to prorogue the House when the prime minister asked her to,” says Finkelstein, who serves as a partner in both the litigation and competition groups at Blake, Cassels & Graydon LLP in Toronto.
“The general rule is that the governor general has to take the advice of the prime minister, and there would have to be exceptional circumstances when she wouldn’t take his advice.”
In December, there were no such circumstances in Finkelstein’s view. While MPs did not get the chance to vote on Finance Minister Jim Flaherty’s Nov. 27, 2008 economic and fiscal update, a majority of them endorsed the throne speech later that day. The governor general is supposed to look at votes in the House, not letters sent to her by opposition MPs, says Finkelstein, who completed his articles of clerkship with former Supreme Court Chief Justice Bora Laskin.
But even if the government had lost a confidence vote, the governor general would have had to take the advice of the prime Minister and call an election, rather than turn to the opposition to form a government. She would have to do so “absent exceptional circumstances,” such as if a minority government fell after losing a vote on the throne speech immediately after an election and the opposition was called on to form a government.
“That might be an example of exceptional circumstances but even that’s not clear,” says Finkelstein, who adds that it would have been a “constitutional error” to call on former federal Liberal leader Stéphane Dion to form a government — particularly since he had been “rejected” by voters “very decisively” in the Oct. 14, 2008 vote.
History provides a cautionary tale through the oft-noted King-Byng affair of 1926. Lord Byng, the governor general, used his reserve power to refuse then-Prime Minister Mackenzie King’s request (who had a minority government) to dissolve Parliament and call an election after losing a confidence vote.
Byng asked Conservative opposition leader Arthur Meighen to form a government, which lasted less than three months before an election was called and King formed a majority government with the support of Liberal-Progressive MPs.
However, constitutional lawyer Julius Grey argues that Michaëlle Jean had the option of calling on the opposition to form a government. Coalitions have held power at the provincial level, informally or formally, in Ontario, Saskatchewan and British Columbia, and Harper stood to lose the confidence of the House over an opposition motion.
Normally, there’s also a parliamentary convention in which another election should not be held within a year of the last vote when a government loses confidence unless it is clear no party could form government, says Grey, senior partner with the Montreal firm, Grey Casgrain.
“In the repatriation reference, the Supreme Court held that conventions were important in Canadian constitutional law.”
In her 2006 memoir Heart Matters, former Governor General Adrienne Clarkson revealed that the year before, she would have turned down a request to dissolve Parliament had former PM Paul Martin approached her within six months of the previous election. More recently, former Governor General Ed Schreyer said he would have turned to the coalition had he still resided at Government House.
And in 1975, Australia’s Governor General, Sir John Kerr, publicly revealed his reasons for dismissing Prime Minister Gough Whitlam’s government and asking Opposition Leader Malcolm Fraser to serve as caretaker PM when the country was faced with a parliamentary impasse.
“The people should not be consulted early unless Parliament is unworkable,” says Grey, who provided constitutional advice to the federal NDP during last month’s parliamentary showdown. He explains that it would not be “reasonable” to have another election before a full session of Parliament had been completed.
It would also not be possible for the governor general to be taken to court over whether or not to dissolve Parliament, says Grey, referring to Harper’s vow to use “all legal means to resist [the] undemocratic seizure of power” by the coalition last year.
The prime minister’s words have confounded constitutional lawyers.
Sossin says that it could mean Harper would dip into the “constitutional toolbox” and seek a reference from the Supreme Court of Canada on the “legitimacy” of the opposition coalition.
“Coalitions are more the norm than the exception in most democracies, so there’s nothing controversial about that idea,” says Sossin. “And while Harper didn’t like the Bloc supporting the coalition, he was prepared to work with the party when he was in opposition. So it’s hard to imagine what issues of legality there would be.”
Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights at the U of T’s faculty of law, says the events that unfolded in Ottawa in December involving the coalition and Harper’s meeting with Jean over prorogation aren’t governed by written rules but are guided by unwritten constitutional conventions.
“It’s hard to say what he would go to court about and whether the governor general, as the representative of the Queen, would be subject to what the Supreme Court says,” says Milne, who currently chairs the Ontario Bar Association’s constitutional, civil liberties and human rights section.
However, the court could play a different role, according to Sossin.
He believes it was “not appropriate” for the governor general to “allow herself to be used by a party seeking to avoid accountability in the House,” though she arguably preserved the “legitimacy” of her office by avoiding the public outrage that would have greeted her granting the opposition coalition the right to govern. Still, Jean’s decision raised concerns over the independence of her office and Sossin says that others have raised the idea of giving the Supreme Court Chief Justice “or some body perceived to be more independent” the task of dissolving Parliament.
“This is about the lack of transparency as the problem and greater transparency as the solution,” says Sossin, who completed his article of clerkship with former Supreme Court Chief Justice Antonio Lamer at a time incoming Supreme Court Justice Thomas Cromwell served as executive legal officer.
Meanwhile, Milne questions the “political legitimacy” that flows from the recent proroguing of Parliament. “We have a prime minister whose government would not have survived a confidence vote in the House who has gone on to make appointments to the Supreme Court and the Senate. What are the checks and balances when the House is not sitting and he’s not answerable to elected officials?”
Harper could again ask the governor general to prorogue Parliament if he fears losing a confidence vote over the budget later this month. And while it’s doubtful his request would be granted, he does have the support of at least one constitutional tool. Under s. 5 of the Canadian Charter of Rights and Freedoms, Parliament only needs to sit at least once every 12 months. In 2008, the House of Commons sat for just 93 days, matching a modern low last set eight years prior, according to The Canadian Press.
“If you want to hold onto power and don’t believe in the legitimacy of a coalition or another party seeking to form a minority government, presumably you would try to prorogue for as long as you can,” says Sossin.
“We’ve entered a new era of parliamentary democracy where more power is in the hands of the prime minister than ever before.”
