Riches for Constitutional Aficionados

After the excitement of the American primaries and election, we political addicts thought we were going to have to go through withdrawal (or enjoy a respite – a “reassurance” that we really weren’t addicted). But just as we needed a fix, our own constitutional “crisis” comes along. How I wish I were still teaching constitutional law (or Canadian politics, but that was long, long ago in another galaxy). I would tell my students that I put “crisis” in quotation marks for a reason and then I would seize the opportunity to tell them that, recent developments notwithstanding, we still operate under a parliamentary system…not a crisis at all, but the system in full operation.

As a friend of mine said, in other countries they have coups, while we have wars of words and the governing party talking about going to go door to door to find signatories for a petition. The Canadian way is to fall back on a constitutional nicety that flows from one of the basic principles or conventions of the parliamentary system: for a party to govern it must have the confidence of the House. Granted that the usual way to address lack of confidence is through an election, even that often results, as it did last time, in a rather lukewarm vote of confidence from “the people”. (Mr. Harper’s insistence that “the people” must decide reflects his apparent wish to be President and not Prime Minister and tends to overlook that more people voted against his party than for it.) Rare though it may be, however, the Governor General’s calling on another party to see if it can acquire and maintain the confidence of the House is a legitimate constitutional method of permitting Parliament to continue for a reasonable period of time (and of course it can work because there are not too many parties to complicate things, although see my comment on the Bloc below).

Granted that the coalition’s approach comes with some risks (what is the likelihood that the Bloc will not push its luck?), but whatever happens in the end, and regardless of whether the coalition loses its nerve, given Mr. Harper’s unilateral delay of the confidence vote (contrary to his readiness to hold “confidence” votes in the last Parliament, taking advantage of the Liberals’ reluctance to go to the polls), and whether the Liberal leadership candidates can indeed work together, the last week or so has been a wonderful lesson — and reminder — about our system of government and its constitutional cleverness.

Oh, yes, about that prorogation thing ….and about that economic crisis we’re supposed to be in that some people think still needs an immediate yet considered response.


  1. It’s been a fascinating couple of weeks, watching the spinning and wordsmithing around this so-called crisis. Whether you agree with the government or the opposition, political junkies haven’t had this much “real” Canadian politics to watch in decades.
    Rick Mercer must be absolutely giddy with delight! Events are moving so quickly, he may have to do the show live in order to keep up.

  2. That underappreciated treasure-trove of parliamentary arcana, the Canadian Parliamentary Review, has some articles worth perusing in light of recent events. The articles from Bob Rae (during his NDP days) and especially Chuck Strahl look rather prescient.

    From Edward McWhinney, “Fixed Election Dates and the Governor General’s Power to Grant Dissolution“, Spring 2008

    [F]ormer Governor General Clarkson now looks back on a question that, she says, arose during the Paul Martin minority government after the 2004 general elections: whether, if requested by the Prime Minister for a Dissolution in his government’s early, post-elections difficulties, she should grant the Dissolution. Her conclusion, under constitutional advisement, on the then hypothetical question: certainly not immediately, but only after the government should have lasted at least six months. In her words: “To put the Canadian people through an election before six months would have been irresponsible, and in that case I would have decided in favour of the good of the Canadian people and denied dissolution.”

    The overall position expressed there is clear that the Governor General today is not constitutionally bound automatically to accept a Prime Minister’s advice as to Dissolution: that the Governor General today does still retain a certain discretion constitutionally.

    […] [T]he Governor General, under the same long-standing [constitutional] Conventions, would retain the right to consult with the Opposition as to the possibilities of forming an alternative government without the need for a Dissolution and fresh general elections.

    In the latter situation, existing well-established practice in Commonwealth constitutional Law and Conventions suggests that the Governor General, before acting to withdraw the mandate from an incumbent Prime Minister, is entitled to be satisfied, beyond reasonable doubt, of the political capacity of Opposition parties to be able to form, and then maintain for a sufficient time period, an alternative government that commands the support of a numerical majority of House members. The developed practice is to insist on formal commitments to that effect, in writing, which would include any conditions attached by Opposition forces to their support for a proposed new government, the time duration of such support, and also, crucially, the number of votes that are being committed sufficient to constitute a new, continuing majority in the House. [emphasis added]

    From Bob Rae, “Changing the Confidence Convention in Ontario“, Winter 1985-86

    As a result of the election in May 1985 we were in a rather unique situation of negotiating with the Liberal Party the terms under which they would replace the Conservatives as the government. There were many options considered as whether power could be effectively shared and how a transition would take place in a way that would protect the interests of both parties, the Liberals and my own [New Democratic] party.

    In our situation, we felt it was crucial for us to combine two things. The first was stability. My main consideration as a leader of the third party was to convince people that a minority government could provide stability and that a minority government could work. If people always associate minority government with instability, if they always associate it with an instant election, then it is very unlikely that the people will vote for the third party because it creates instability. Therefore, we as a party, have an enormous stake in stability in the system.

    […] In June 1985 the McGrath Report on parliamentary reform suggested that at the federal level it may be necessary for the executive to unilaterally give up some of its powers. My observation in politics is that people do not unilaterally give up anything. In this business, you have to take it away from them and you have to be in a position where you can, in fact, do that. […]

    Right now, we are all in a mind set where it is the job of the government to propose and the job of the Opposition to oppose. Parliament does not govern. There is a complete clash that takes place in which question period is the classic example. Nobody asks a question in order to get an answer. That is not what question period is all about. The governing aspect of Parliament is almost non existent because Parliament does not see itself in that way. So, my basic interest, now, is in seeing that in our case, in Ontario, that we do, in fact, have a role in governing; that we are, in fact, going to be consulted […] The government has to say “You guys want to get involved and help us to solve this problem. That is good for everybody.” I am not interested in going through life with my elbow on the horn. I do not think that it is a very useful function for an opposition politician to play.

    […] To make this work will demand a different pattern of behaviour in the legislature and some different expectations from the public. The more I study this problem the more I think we have to learn how to make our legislatures more genuinely representative and how to make them work effective so that everybody in the legislature will count. Shortly after the change of government I had an exchange in question period with the new Premier who said: we did not have any responsibility, so it did not matter what we thought. That attitude may work in a majority Parliament but it does not work in a minority Parliament because I know that I am on the hook and he is on the hook too. In a sense, we are all on the hook if we are going to make it work. This is really where we have admitted, as an Opposition party, that we do have some responsibility for what happens in that Parliament. We cannot pretend that it is not our baby as well. [emphasis added]

    From Chuck Strahl, “Politics and Procedure in a Minority Parliament“, Winter 2004-05

    We have to start by remembering that old adage: you have to deal with things the way they are, not the way you wish they were. This is especially true in a minority Parliament, with all its intrigue and tension, political posturing and real drama. Historically, the country has muddled through its share of minority governments, but none in recent times. Thus our elected officials have only theoretical knowledge and zero practical experience about how to handle this situation. So the potential for misunderstandings, improper reactions and even out-and-out political blunders in our nation’s capital is considerable.

    […][B]ackroom deals and tradeoffs will be standard fare on this minority diet. […] [P]olitics makes strange bedfellows, and strange Parliamentary couplings can occur at any time. One of the first press conferences held in the new session was an all-opposition affair to announce their collective support for a Private Member’s Bill they believe will help fight organized crime. They did not even try to get the approval of the government in advance of the announcement, choosing a public display of intentions as their way of throwing down the gauntlet. Watching the three disparate Opposition parties working so closely, obviously and publicly together may take some getting used to, but it is a sign of things to come. [emphasis added]