Tuesday, December 9, 2008

Keep the Courts out of this Mess

Norman Spector made a very bad suggestion in the Globe and Mail today, namely to ask the Supreme Court of Canada to sort out the strength of the Coalition's claim to government. This would embroil the Supreme Court of Canada in an entirely political question. This would do nothing to settle the feelings of the losers. This would forever tarnish the reputation of the Supreme Court. This is an inherently political matter and it will be for the Governor General, politicians and the public to sort it out.

The Supreme Court of Canada has in the past sorted out whether certain constitutional conventions exist. For example, the court figured out whether or not there needs to be a consensus of provinces before asking for a constitutional amendment (before the patriation of the constitution in 1982) and also answered the question of whether or not Quebec can separate after a clear expression of political will. In the the Patriation Reference however the Supreme Court of Canada made it clear that while it would answer questions about whether or not a convention exists, it would not and should not become embroiled in the political debates about whether or not political conventions have been honoured. It said this after finding that separation was possible after the political will of Quebec had been clearly expressed and negotiations had been honourably attempted:
The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution", not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

In this case we know the convention -- the Governor General must take advice from the Prime Minister if that Prime Minister has the support of the House of Commons. If a Prime Minister does not have the support of the House of Commons, then Governor General must either dissolve Parliament or invite new players to form a government. These powers have been used numerous times through history. David Peterson assumed the government of Ontario without an election being called. Winston Churchill took over the Government of England without an election being called. Robert Borden (briefly) took over the Government of Canada without an election being called -- and did so over the objections of the outgoing Prime Minister. These situations arise rarely but when they do arise the political circumstances are unique (so a court precedent will serve little purpose) and they are political (so it is hard to see what the real value of legal precedent is).

We are all going to have to be grown up boys and girls and not ask the Courts to bail us out of this one. We are going to have to make our own personal judgments about whether avoiding Stephen Harper's shenanigans makes a deal with the Bloc (or the Liberals or the NDP, depending on your values) worth it. We are also going to have to decide how we express our views so that they influence our political actors. That is we are all going to have to engage in politics or let someone else chart the country's course for us.

The United States Supreme Court forever tarnished its reputation through its intervention in the Bush-Gore showdown. Let's not do the same thing to our Supreme Court.
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Friday, December 5, 2008

A Constitution similar in Principle to that of the United Kingdom

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

Did you know these were the opening words of our Constitution?

Did you know that our Constitution does not mention the office of the Prime Minister?

Did you know what prorogation meant before last week?

The events of the last week have been an object lesson in the fact that we in Canada are not the United States -- we do not elect a president and the Prime Minister does not have the same security or prerogatives that the American president has. Instead, in line with the (unwritten) constitution of the United Kingdom, our governments (the Executive) have no mandate if they do not have the day to day support of the House of Commons. Since the days of Pierre Trudeau this has not been a major issue. Canadians have consistently returned Parliaments where one party of the other held a healthy majority and so the government could go to the bank on the certainty that their plans would be backed in the House of Commons and their continued residence in the Langevin Block was secure. It is this fact that people started referring to our system as an elected dictatorship -- but it was not the system, it was the fact that we elected consistent majority governments which allowed Prime Ministers to centralize power across the street from Parliament in the Prime Minister's Office.

The principle that the Government governs only with the consent of the House of Commons is a bedrock principle of our constitution. There is a long and convoluted history of how this came to be but, appropriately enough given last week's shenanigans, at its base is a simple thing -- money. Starting likely in the 1100's the rule fell into place that the Crown could not levy taxes or spend the public's monies without the consent of Parliament. Eventually this became even stricter so that now (well since 1867) our Constitution actually says that any law appropriating money or taxes must originate in the House of Commons:

Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons. ,

Of course money being the lifeblood of government the ability to choke off the supply of funds therefore becomes the means of killing the power of the Executive to do anything.

The British and American approaches to the legitimacy of the government independent of the power of the House of Commons represents a fundamental difference in view. In the United States the system is seen as one of contending branches of government, each with their own mandates and constituencies. If deadlock arises because of this, so much the better, as the drafters of the Constitution largely wanted a government that was modest in size (now that went wrong didn't it) and hard to put into motion. Their model was Rome with its complex puzzle of institutions and rules largely designed to keep the government from doing things that might upset the vested interests.

In Canada (and the UK) the system is one that is premised on power actually being vested in Parliament. A government without the support of Parliament therefore is not legitimate and must either seek the support of the electorate or step aside for a different government. This has happened many times in Parliamentary history and will happen again.

Does this therefore mean that the current government is illegitimate for having avoided the current vote? Despite my doubts about Mr. Harper, the answer to that question is "no". The current government did get the confidence of the house and as of yet has not formally lost it in a vote. The Governor General seems to have also considered the issue and by acceding to Mr. Harper's request effectively determined as a matter of fact that she believes that the advice she is receiving from Mr. Harper is on solid enough footing that she should not reform the government under new leadership. As for the fuss around the decision to prorogue, well that is matter that is entirely in the hands of the Governor General and so, in effect, her decision, by definition, represents an effectively unappealable ruling that Mr. Harper has made a legitimate request. It should be noted that historically our parliamentary system has often had battles over substance that were fought using delay or over the power to delay and so this is not out of the traditions of Parliament.

For example, the Long Parliament was a situation where the English Parliament deprived Charles I of the power to dissolve Parliament to prevent him from doing what Harper did. In the early 1980's the Conservatives refused to attend Parliament on a division, effectively freezing time for almost a week, in order to prevent a vote from taking place on one of the constitutional resolutions. Even in the regular business of Parliament it is recognized that one way to say "no" is to say "later". One of the possibilities open in the House of Commons on second reading of a bill is to pas the "Six Month Hoist" which puts off considering a bill for six months (usually killing it). Similarly, historically when the Crown refused to give Royal Assent to a bill, the Crown would not say "no" or refuse to assent but would say "S'advisera" -- I will advise myself. There was no "no" but no "yes" either.

What cannot be lost sight of is that all of these conventions are part of constitution but are not subject to the Courts' review. As was said in the Patriation Reference about constitutional conventions:
The proposition was advanced on behalf of the Attorney General of Manitoba that a convention may crystallize into law and that the requirement of provincial consent to the kind of resolution that we have here, although in origin political, has become a rule of law. (No firm position was taken on whether the consent must be that of the governments or that of the legislatures.)

In our view, this is not so. No instance of an explicit recognition of a convention as having matured into a rule of law was produced. The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.

The attempted assimilation of the growth of a convention to the growth of the common law is misconceived. The latter is the product of judicial effort, based on justiciable issues which have attained legal formulation and are subject to modification and even reversal by the courts which gave them birth when acting within their role in the state in obedience to statutes or constitutional directives. No such parental role is played by the courts with respect to conventions.

Who then rules on whether or not conventions have been properly followed? Well, ultimately it is the political players -- in the first case the Prime Minister and Governor General but ultimately the House of Commons and in due course the electorate.

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