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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