Procedure and House Affairs Committee on Oct. 5th, 2006

[Prof. Louis Massicotte]

There are two points I'd like to address on the issue of exceptional circumstances.

Should you try to specify in a constitutional provision or in legislation when exactly and in what kinds of circumstances an early election could be called? Henry has mentioned the experience of Germany. I'm glad he did, because I happen to know that experience very well .

The Germans in 1949 had a negative prejudice against dissolution--the constitution signers. The constitution makers in 1949 had a negative view of dissolution because of the way it had been used during the previous republic and so on. They created not only federally, but in the various Länder, a setting where elections would occur at very predictable dates unless it were very necessary to call an early election. And they made that very difficult .

Three early elections have been held since 1949. The three circumstances were utterly different. In 1972 it was because the majority of Chancellor Brandt was slipping away and he decided to clear the skies and to call the election early by engineering his own defeat, which was not a very elegant way of getting what he wanted.

The second case occurred 11 years later after a motion had toppled Chancellor Schmidt and put Mr. Kohl in place. Mr. Kohl, having acceded to power without a vote of the population, thought it fit that the people have an opportunity to pronounce on the issue, so again, he engineered his own defeat, which, incidentally, caused a constitutional challenge through the German Constitutional Court.

The third case occurred very recently. I'm sure it's fresh in your minds if you have an interest in German news. The chancellor again engineered his own defeat, and the circumstances are very interesting. He was only one year and three months before the end of his term, yet he had come to the conclusion, which was warranted, I think, that he had totally lost the confidence of the country. Provincial elections, which in Germany are a test for federal governments, had been extremely negative, and so he decided to, again, engineer his own defeat and an early election was called. What struck me, incidentally, is that everybody agreed with it. There was wide consensus within the Bundestag about the elections.

So my point would be, when it comes to exceptional circumstances, try to define this. Try, if you wish, but I don't think it would be very easy to do so and I don't think it would be wise either to do so.

[The Chair, Conservative, Gary Goodyear]

Thank you, Professor.

Now to Mr. Reid, please, seven minutes.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you.

My question was actually going to inquire in greater detail about the German example, but that's just been done for us.

One of the things that occur to me here is this. If a government loses a vote of confidence and the four-year cycle is not up, especially if we're quite early on in the four-year cycle, it strikes me that it's not constitutionally impermissible that the opposition parties--if it's a minority parliament--could attempt to demonstrate that they have the confidence of a majority of members. In the current situation we could imagine it's perhaps improbable, but not constitutionally impossible, that the current Conservative government could be defeated on a confidence matter, and rather than going to an election, the three opposition parties could demonstrate that they have a workable coalition and go to the Governor General.

Am I right in assuming that this would be the case and that under the new law the Governor General would at least have the option of accepting their offer to demonstrate that they could put forward, say, a confidence motion in a new government in the House of Commons?

I'm asking you, Professor Massicotte.

[Prof. Louis Massicotte]

I'll try to answer this as best I can. This is one of the areas of the conventions surrounding the possibility of refusal of dissolution by the Governor General that is a grey zone, a grey area.

I would say that if a new minority government is defeated, let's say, three days after the opening of Parliament, after the throne speech, and the Prime Minister wishes to call an early election, there is every possibility that the Governor General will refuse. I think many people would accept that view, that you can't have elections so close.

The issue was widely discussed in 1972 when Mr. Trudeau hung to power, as you know, and the informal rule was that if you could survive the six months, that's fine. If you're defeated within the first six months, there is a strong possibility that the request for dissolution would be refused by the Crown. If you are defeated later than that, it would be much more difficult to imagine that the request for dissolution would be refused unless there are clear reviews. And as you know, it's a very difficult power to exercise, to refuse dissolution. The only Governor General who did had the kind of experience.... I'm referring to Lord Byng.

I'm not a lawyer. I don't see these conventions being in any way clarified or modified by the piece of legislation that you are dealing with.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Let me ask you a supplementary question then. A lot of the discussion seems to have been based on the assumption that the opposition parties would be fairly passive. It would be the government putting forward motions in the House of Commons, engineering its own defeat. But again, I'm using the minority government model here. I can see how this would be more problematic in a majority, but imagine a situation in which it seems likely there will be a vote of non-confidence in the government over some matter of confidence, whether it's a money bill or a budget. One can even imagine it's a motion that says “no confidence in this government”, but perhaps there could be an accompanying motion as well or an indication that one would be put forward saying that we would have confidence in some new ministry.

What would happen in such a circumstance?

[Prof. Louis Massicotte]

That would be interesting. I personally thought of that possibility. Look, I'm obliged to refer to Germany again because this is exactly what they have, the so-called famous vote of constructive no confidence. In order to avoid an election being held, they do two things at the same time. They topple the chancellor, but they elect a new chancellor on the same stroke, so that if the opposition parties cannot agree among themselves on the new Prime Minister, the government will continue to stay on.

We do not have this. But nothing would prevent, I think, the House of Commons from adopting a motion to that effect. As we are dealing with conventions and as we are in grey areas, I see nothing in the law of Parliament--and I probably stand to be contradicted by people more familiar with the rules than I am--but I'm pretty much under the impression that such a scenario would be admissible. It would certainly create a very interesting pressure on Her Excellency not to accept a possible request of dissolution from a defeated Prime Minister and to instead appoint as Prime Minister, without an election to be called, the new Prime Minister designated in the motion.

Am I clear?

[The Chair, Conservative, Gary Goodyear]

Mr. Reid, you have two minutes left.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Maybe rather than asking any further questions, I could just ask the other witnesses if they have any comments on what has been said.

[The Chair, Conservative, Gary Goodyear]

Professor Milner.

[Prof. Henry Milner]

I'll defer to Professor Heard.

[The Chair, Conservative, Gary Goodyear]

Professor Heard, do you have any comments?

[Prof. Andrew Heard]

Yes. I agree with everything Professor Massicotte has said, and I would just add as well that a Governor General can only refuse dissolution if she is prepared to appoint another Prime Minister in place of the one who's offered the advice of dissolution, because it's a standing convention that if your advice is refused by the Governor General, then the Prime Minister should offer their resignation.

In the circumstance of a minority government where there's an alternative possible government, then quite clearly the Governor General would be able to find an alternative. This should be worked out through informal discussions prior to any formal meeting between the Governor General and the Prime Minister.

[The Chair, Conservative, Gary Goodyear]

You actually have one minute left, Mr. Reid, if you would like.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I'll just thank the witnesses and wait for the next round. Thank you.

[The Chair, Conservative, Gary Goodyear]

Thank you very much.

We will now go to Madame Picard, s'il vous plaît.

[Pauline Picard, Bloc, Drummond, QC]

Thank you, Mr. Chairman.

Someone said earlier, in his summary, that the legislation must be clear and that Bill C-16 simply maintains the status quo.

If I understand correctly, that means that Bill C-16 does not amend current conventions with respect to matters of confidence and if, in a situation where the government has a minority, the prime minister calls a vote of confidence on a matter involving values, and loses the vote, that means that at any time, an election could be called. Is that what you said?

[Prof. Louis Massicotte]

What I meant was that a prime minister does not call a vote of confidence whenever he feels like it. It is a formal procedure.

One of the rare examples that I cite to students -- I don't know whether you were in the House of Commons then -- is the time in 1988 when Mr. Chrétien called a vote of confidence on the issue of Hepatitis C. The government had a majority, but the Opposition had tabled a motion asking that victims of Hepatitis C receive full compensation. Some Liberal MPs were tempted to support the motion. So, Mr. Chrétien put his head on the block, saying: “That's too bad. Either you like this motion or you don't and, as we say in English, it's: Love me, love my dog, if we end up in an election and I'm defeated.”

For the prime minister, it's a means of applying pressure, but you should never forget one thing, and that is, that it's a dangerous game to play. Parliament may well take you at your word and say no, even on a very minor issue. And having said before the vote that he was putting his head on the block, if Parliament turns around and says no, then he ends up having his head cut off. You have no choice but to follow through on your threat.

So, it's a risky business, but I do think we need to preserve that option, because it's a way for the government to move things forward. The great thing about the parliamentary system, compared to the one our neighbours to the South have -- of which I am quite familiar, even though I don't particularly admire it -- is that our system assumes that the government can do good things for us. It can also do bad things, as I am fully aware, but it is better to have an activist government than one that fails to act. I believe it's one of the advantages that our system offers.

[Pauline Picard, Bloc, Drummond, QC]

Would the other witnesses care to comment?

[The Chair, Conservative, Gary Goodyear]

Yes, they can.

If you want to ask any of the witnesses, they can answer for you. Thank you.

[Pauline Picard, Bloc, Drummond, QC]

On the same question.

[Prof. Andrew Heard]

Yes, I'd like to address an issue that was raised in second reading and comes up here as well, the desirability of the Prime Minister being able to draw a line and say that this is a matter of confidence. I think it's as important for the government to be able to set a matter as being a test of confidence as it is for the opposition to declare that something is a matter of confidence. Essentially, both sides are saying that the issue is so important that if it is voted down, they are prepared to go to the people over it.

I think that is a very important principle that should be protected in our parliamentary system.

Thank you.

[Prof. Henry Milner]

I don't agree, because an election is not simply a way in which political leaders can use Parliament to impose their will. An election belongs to the people.

An understanding should be built into the law to say that as long as the government maintains the confidence of the majority of the members of Parliament, it cannot bring about a premature election. It's not very complicated. We've seen in Canada that if a government is defeated on a bill, doesn't want to treat it as a matter of confidence, and there isn't clarity on it, it then goes to the House and says, “I want to reaffirm that the majority of the members of the House still have confidence in the government.” In fact that's what happens.

So ultimately, if you're really talking about being prepared to undermine the government because the majority in Parliament is no longer satisfied with that government, it should take the form of an express vote of non-confidence. It should not be seen as a means by which a particular leader places pressure on other leaders because of his or her priorities.

[The Chair, Conservative, Gary Goodyear]

You have three minutes left, Madame Picard.

[Pauline Picard, Bloc, Drummond, QC]

Professor Massicotte, what would you like to see added to the bill to tighten it up or ease the constraints?

[Prof. Louis Massicotte]

Well, as I said in my presentation, I can live with this bill as it is presently worded. I suppose minor changes could always be made. Personally, if there is one thing, it would be that this be enshrined in our Constitution. I think it's a little strange, from a pedagogical standpoint, for Section 50 of the Constitution Act, 1867 to state that no Parliament shall continue for longer than five years, when the Elections Act says that it's going to be a maximum of four years. I find that rather strange from a pedagogical standpoint.

By the way, the situation is the same for the National Assembly. In the Constitution, it talks about four years but in the Act of the Legislature, it's five years, and it's the most recent legislation that takes precedence. From an educational standpoint, I would have preferred and expected something else. When I saw this bill, I thought to myself that it must be legislation amending the Constitution Act, 1867. And yet this legislation actually amends the Canada Elections Act.

I realize that, legally speaking, it makes no difference. Parliament clearly has the right to amend Section 50 of the Constitution Act, 1867 and reduce its own term. That, at least, is my reading of the federal Parliament's amending powers as regards the Constitution, but in my opinion, it should have exercised that power at the drafting stage. Pardon the expression, but as a country, I think we have become rather constipated, constitutionally speaking, because we don't dare touch the wording. We find all kinds of reasons to avoid it because those who dared to do it, as you well know, had plenty of opportunity to regret it.

I'll be perfectly frank with you about this legislation. What I see is that it introduces new constraints for prime ministers, and I see that as an interesting feature. I would have liked those constraints to be confirmed in the Constitution, not because it formally has more authority, but simply because the new rules would perhaps be clearer for the public.