Thank you very much.
I'm going to read my initial comments to facilitate the translation process at this point. I will try to keep my comments brief, to the point, and touch on the three areas I was told the committee wished especially to hear about. I look forward to more detailed discussions with your questions.
In my view, the bill largely preserves the status quo ante, with the major exception of shortening the maximum life of a parliament to four years. As with the three provincial measures dealing with the same subject, Bill C-16 sets a maximum life of four years for the legislature, while explicitly preserving the Governor General’s power of dissolution.
Legally the Governor General’s power of dissolution must be exercised in tandem with the Prime Minister. Both the proclamation issued under the royal prerogative to dissolve Parliament and the actual election writs issued under the Canada Elections Act must be done by and with the advice of the Prime Minister. As I can explain in detail later, the law gives the Governor General the upper hand in this process, while convention ensures that the Prime Minister usually, but not always, is the actual decision-maker.
The decision to dissolve Parliament is normally made by the Prime Minister, and the Governor General must act on his or her advice to sign the proclamations and writs. However, constitutional conventions also provide the Governor General with the power, in certain circumstances, to refuse the Prime Minister’s dissolution advice. This refusal is most widely supported for a minority situation where an alternative government could be formed by another Prime Minister.
In theory too, the Governor General may personally decide that Parliament should be dissolved and demand that the Prime Minister comply. However, this would be very controversial, indeed, and it could only be considered in the most drastic of circumstances, such as when Parliament is paralyzed and apparently beyond the control of a cabinet determined to cling to power.
In its current form, Bill C-16 neither alters nor is directly affected by the confidence convention. I can briefly summarize a difficult topic by noting that modern constitutional authorities generally agree on three types of votes involving a test of confidence. These various confidence votes can be grouped into three broad categories. The first two are relatively unambiguous.
The first is any otherwise ordinary motion that the government has designated in advance to be a matter of confidence.
The second group of confidence votes relates to motions to approve broad government policy, and defeats on these motions clearly demonstrate lost confidence. These votes include the Address in Reply to the Speech from the Throne and the main budget motions. Most commentators also include the main budget implementation and supply bills in this category, which involve confidence, but we should note that other money bills do not.
The third set of confidence votes are the problematic group, occurring on motions worded to convey a lack of confidence in, or the serious censure of, the government or members of cabinet. The key for categorizing either stand-alone motions or amendments as confidence votes must inherently hinge on their wording. The problem is just what wording makes a motion a test of confidence.
Some examples are unmistakably clear, such as the one that precipitated the last election: “That this House has lost confidence in the government.” But a review of motions over the past century reveals that motions with much more varied and convoluted wording have been considered tests of confidence. As a result, motions become tests of confidence because their wording conveys a loss of confidence, a condemnation of the government, a call for resignations, or a declaration that the government is not fit, or has no right, to hold office.
Constitutional conventions have a limited legal status, but the courts have made use of them in various contexts. There are a few possible ways in which conventions might arise in judicial consideration of Bill C-16's current provisions, and I do not believe judicial consideration of conventions will significantly alter the bill’s current provisions.
However, the courts would be called upon to adjudicate the confidence convention if the bill were amended or a constitutional amendment proposed to prevent premature dissolutions, except when a government has lost confidence. In my view, this is highly undesirable for two reasons: one, the confidence convention currently has vital flexibility and room for evolution; and two, a confidence vote is a supremely political act that should not be subject to either judicial interpretation or enforcement.
Currently, the Governor General is the ultimate enforcer of the confidence convention. Although she is an appointed official, convention requires that either the current Prime Minister accepts political responsibility for her actions, or a new Prime Minister is appointed who will.
On the constitutional issue, it's not a question of if it is possible in our parliamentary system but it's a question of which process should be used. And in my view, the current provisions of Bill C-16 are achievable through ordinary legislation, but constitutional amendment may be needed to achieve its supposed objective of precluding early election calls not resulting from a loss of confidence. Amendment may well be required in the latter case, because changes substantially affecting the Office of the Governor General require a unanimous amending formula.
On a more optimistic note, the proliferation of similar legislative measures at the provincial level may raise citizen expectations for majority governments to last the full years. In B.C., for example, common discussions of elections are already premised on the belief that four-year cycles are required. Ironically, this proposed legislation may best achieve the government's stated objective by generating a new constitutional convention to limit a Prime Minister's election options.
Thank you.