JURIST Guest Columnist A. Wayne MacKay of Dalhousie Law School in Halifax, Canada, says that while Governor General Michaelle Jean’s decision early this month to grant Prime Minister Stephen Harper's request to suspend the Canadian parliament until January to avoid losing a confidence vote to a coalition of opposition parties is politically popular and what most Canadians wanted (at least outside Quebec), only time will tell if it was constitutionally wise…

Rarely have Canadians (or Americans!) been so riveted by political life in Ottawa as during the late days of November and the early days of December, 2008. The nature of this focus on Canada’s Parliament was not the kind of positive energy that surrounded American President-elect Obama’s historic election victory a few weeks before, but rather a negative and nervous energy characterized by disbelief, disgust and surprise. In a time of economic crisis rivaled only by the Great Depression of the 1930s, Canada was being plunged into a political crisis not seen since 1926, when then-Governor General Byng denied then-Prime Minister William Lyon Mackenzie King’s request to dissolve Parliament, so the Prime Minister could avoid a non-confidence vote in the House of Commons. Governor General Byng denied the request and called upon the leader of the opposition (former Prime Minister Arthur Meighen) to attempt to govern by forging an alliance between the Conservatives and the Progressives — a coalition of sorts.

Fast forwarding to 2008, Prime Minister Stephen Harper’s minority Conservative Government, elected only a few weeks before in a general election, brought forward an economic update that so enraged the opposition parties in the federal Parliament that they formed a coalition of the Liberal and New Democratic Parties, supported by the separatist party from Quebec — the Bloc Quebecois. The items in the economic update that forged this coalition included a ban on public service strikes, a roll-back of pay equity and the removal of public funding for political parties. The funding cuts would have effectively neutered the opposition parties and epitomized an economic update that was more ideological than economic in nature, and was both partisan and mean spirited. It was also contrary to Prime Minister Harper’s pledge after his recent election victory to work together with the opposition parties to combat the looming economic problems facing the nation. Indeed, there was little in the economic update to address economic concerns.

It appears that the Prime Minister underestimated the political will of his opponents and forgot the primary role of responsible government in a British style parliamentary system, i.e. that a Government must maintain the confidence of a majority of the members of Parliament in order to govern. This is particularly true in a minority Parliament where no one party has a majority of the members of the elected House of Commons. The coalition parties served notice that they had lost confidence in the Harper-led Government, and would defeat him on a non-confidence motion at the earliest possible opportunity.

Prime Minister Harper delayed the non-confidence vote by one week within Parliamentary rules and then went to the formal head of state in a British style Parliamentary system — the Governor General, currently Michaelle Jean — seeking to prorogue Parliament, that is to end the current session. This historic meeting between the Prime Minister and the Governor General took place on December 4, 2008 and after a 2 ½ hour meeting, the Governor General granted the prorogation request accepting the advice of Prime Minister Harper to put Parliament on hold until January 26, 2009. This gave him time to prepare a budget through which he hopes to regain the confidence of the House of Commons and avoid the looming non-confidence vote.

Canada has a Constitution “similar in principle to that of the United Kingdom” in which most of the vital constitutional principles are in the form of conventions — rules which are binding within the political realm while lacking legal clout. Canada also has extensive written constitutional provisions, including since 1982 a Charter of Rights, but it is the British style conventions which are relevant to the recent “constitutional crisis”. Under the written Constitution, the Governor General as the head of state has the ultimate legal authority but on most vital matters she only acts upon the advice of the Prime Minister, as a matter of convention. On this basis some argued that the Governor General was bound to accept the Prime Minister’s advice to prorogue the House of Commons, as she ultimately did. Indeed, if she had refused his advice, convention would have required the Prime Minister to resign — a result some angry Canadian voters desired. However, the matter is not so simple.

There is an even more vital convention that a Government can only govern when it has the confidence of a majority of the members of the House of Commons who have been democratically elected. The opposition parties signed a formal document indicating that they had lost confidence in Prime Minister Harper’s Government and that when it would be defeated in the upcoming vote of non-confidence, the Governor General should call upon the Liberal and New Democratic Party Coalition (supported by the Bloc Quebecois, which was not a formal part of the coalition) to form the Government. This document was sent to the Governor General. In effect they were requesting what Governor General Byng had done in 1926 when he rejected the advice of then Prime Minister King, who had lost the confidence of the House of Commons. In that case, Governor General Byng refused a request to dissolve Parliament and call an election, in favour of allowing the opposing coalition an opportunity to govern with the confidence of a majority of the House of Commons. That coalition lasted only a few days and then Prime Minister King won the ensuing election, campaigning against the Governor General’s failure to accept his earlier advice in line with constitutional convention.

In the recent constitutional crisis the advice was not to dissolve the House and call an election, but rather to prorogue the recently elected Parliament, allowing the Government to at least delay, and in reality likely avoid, a vote of non-confidence in the House of Commons. In the view of some constitutional commentators (myself included), this sets a dangerous precedent that is likely to be followed by future Governments facing a vote of non-confidence. It may damage the vital constitutional principle that a Government can only continue to govern when it has the support of the majority of the members of the House of Commons. Governor General Jean made the difficult decision to grant the Prime Minister’s request to prorogue Parliament, and by so doing exercised her clear legal authority to do so, but at the cost of establishing a potentially dangerous precedent for the future. There is no question that the Governor General’s decision is politically popular and what most Canadians wanted (at least outside Quebec) but only time will tell if it was constitutionally wise.

Truth is the first victim of many political battles and that proved true during the recent turmoil. In the lead-up to the December 4th meeting the Prime Minister characterized the coalition as undemocratic and designed to thwart the Canadian peoples choice of him as the leader. In a Parliamentary system unlike the Am
erican Republican system, however, the people elect members of Parliament. It is only as a matter of convention that the leader of the party with the most members elected forms the Government. The key is holding the confidence of a majority of members of the House of Commons. When the governing party has a majority of the members of the House, this is fairly straightforward because of strict party discipline, but in a minority government situation where no one party has a majority of the members, it is more complex. The formation of coalition is neither undemocratic nor lacking in precedent. It was a coalition of parties that led to Confederation of Canada in 1867 and again in 1917 a coalition of Unionists led by then-Prime Minister Sir Robert Borden brought in conscription during World War I. Moreover, there are many precedents for effective coalition governments in Europe and other Parliamentary systems. So long as a coalition has the support of the majority of the House of Commons it is both democratic and legitimate in constitutional terms.

Another tactic used to gain popular support for the governing Conservatives and stir up antagonism against the Coalition was the argument that the Liberal-New Democratic Party Coalition had made a pact with the “devil” — the Bloc Quebecois, whose avowed aim is to separate Quebec from the rest of Canada. Prime Minister Harper, when leader of the opposition in 2004, pursued a similar alliance and his Government has been frequently supported by the Bloc Quebecois. Bloc Quebecois members were democratically elected to represent Quebec in the House of Commons and the demonizing of these members by the Harper Government in recent weeks has re-opened issues of national unity and galvanized most Quebecers against the Conservatives. The forces of alienation in the western provinces of Canada have also been fueled. Another casualty of the recent political crisis may have been a re-opening of national divisions, which were fairly dormant in recent years. It also makes it unlikely that Prime Minister Harper’s Conservatives will have much success in electing members of Parliament from Quebec in the near future, thereby reducing their chances of forming a majority government in the next election. Playing the national “unity card” may also have a high price at the national level.

As I write this op-ed things have quieted down and it looks less likely that the Harper Government will be defeated by the Coalition. Indeed the Coalition may well unravel, as its original leader and the leader of the Liberal Party, Stephané Dion, has stepped aside and has been replaced by Michael Ignatieff, who takes the position “coalition if necessary but not necessarily coalition.” Assuming that the Harper Government reaches across party lines to produce a budget that at least the Liberal party can support, it will likely avoid a January non-confidence vote. In respect to reaching across party lines and acting in a non-partisan fashion, Prime Minister Harper could take some lessons from American President-elect Obama. Re-establishing the trust and confidence of the House of Commons in the longer term will, however, be a major challenge for Prime Minister Harper and his Government. Many suggest non-partisan co-operation is not easy for the Prime Minister and the Toronto Globe and Mail columnist Gary Mason suggests in the December 6th issue that Mr. Harper may need a Christmas eve visit from the spirits that enlightened Mr. Scrooge in order for him to see the error of his ways and chart a new path. Most Canadians have had just about all the political excitement that they can stand and are asking Santa Claus for a federal Parliament where the members can deploy their collective energies confronting the real economic problems facing the nation and rise above political bickering. May there be peace in Parliament and good will in the land that will inspire the confidence of all Canadians that Parliament will address the real economic challenges rather than create political crises and constitutional distractions. Whether Prime Minister Harper regains the confidence of both Parliament and Canadians may depend upon how well he listens to the spirits of Christmas — past, present and future.

A. Wayne MacKay is Professor of Law at Dalhousie Law School
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