Procedure and House Affairs Committee on April 29th, 2010

[Prof. Errol Mendes]

Yes, but in addition to paying the political price there is the potential for the Governor General--having been given the advice on the rights and privileges of the House of Commons--to then use her reserve powers to refuse the prorogation.

So there are two possible consequences to it: one is the political price; the second, the ability of the Governor General to have ammunition to refuse the prorogation.

[Pierre Paquette, Bloc, Joliette, QC]

Okay, thank you.

[The Chair, Conservative, Joe Preston]

Wow. We're doing great.

I have Mr. Albrecht and Mr. Holder for quick questions, and then we'll come back to David, if we can.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

First I have a comment, and then a quick question.

Mr. Mendes, you mentioned the encouragement of civil society to get involved in...and I think we're all aware of the Facebook group. You say that average Canadians were “outraged”. I guess I would question that, first of all on the basis of the very small number, in relative terms, in Facebook groups, and second, on the basis of the very easy way of getting involved. If that's political involvement, I fear for our country: simply point and click. So I would debate that.

The second point I would make relates to page 3 of your presentation. You suggest that the Standing Orders be amended to not allow prorogation within the first year following a throne speech.

How is prorogation in the first year more of a threat to democracy than the formation of a coalition within a few weeks after an election in which Canadians have clearly indicated who they would like to serve as their government?

[Prof. Errol Mendes]

I'm here to present more legal analysis, but as you force me to, I will venture into other areas.

Firstly, in terms of your argument that 225,000 people on Facebook is nothing, well, I'd like you to tell them that.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I didn't say “nothing”.

[Prof. Errol Mendes]

I'm sure some of them are in your constituency.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

With respect, sir, I said a very small group “in relative terms”.

[Prof. Errol Mendes]

And secondly--

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

The percentage of Canadian citizens was very small.

[Prof. Errol Mendes]

--I'm not going to go into the political analysis, but the polling has clearly shown that Canadians were exercised by it, and it reflects itself in even present polling numbers. That's all I want to say in terms of the political ramifications of what happened.

I'm sorry, what was your other part?

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I'm just wondering how prorogation within a year following a throne speech—or earlier than a year—could possibly be construed to be more of a threat to democracy than the formation of a coalition within a few weeks after an election having taken place.

[Prof. Errol Mendes]

Again, that is venturing into the political realm, but I'll try to answer it anyway.

I think the most foundational duty, or the basis of our constitutional democracy, is responsible government: that the executive is responsible to the elected members and only is allowed to hold power as long as it has the confidence of the House. Nothing could be more sacred than that principle.

And so, even after a throne speech, if the government loses the confidence vote, our democracy demands that there be an election—there is no choice—rather than having a thing....

Let me finish.

If, however, there is an ability on the part of the other parties in the House of Commons to avoid a very expensive election, the Governor General then, as has happened in the past, has the ability to seek whether or not the opposition together can form a government.

And in terms of saying that is illegitimate, or a coup--that's outrageous in terms of the constitutional history of this country.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I certainly agree, sir--

[Prof. Errol Mendes]

That's basically saying that what Robert Borden did was outrageous and that what happened with David Peterson in Ontario was outrageous.

I mean, it's just beyond any type of convincing rebuttal.

[The Chair, Conservative, Joe Preston]

Mr. Holder, do you have a question?

[Ed Holder, Conservative, London West, ON]

Well, thank God Mr. Rae, when he was Premier of Ontario, didn't do outrageous things.

I want to say a couple of things. You've prefaced many of your comments, sir, with “it is my opinion”. I appreciate the candour, because I respect that it is your opinion. Just like the opinion that the first minister gives to the Governor General, you're certainly giving us your opinion as well.

You said that you agree that the constitutional approach is not the way to go. Your appeal to constituent groups, as I've heard your testimony today, gives me the sense that you're trying to make the civil society argument. That is, what you can't get through the front door, you're trying to get through the back door. That's just how I feel in terms of how you presented.

Here's my question to you. You've indicated that the Speaker has equal power to the Prime Minister in terms of appeals to the Governor General. I'm actually quite shocked by that in terms of the ability of the Speaker to advise the Governor General.

Where is the precedent for that, in Canada, where that has happened to this point?

[Prof. Errol Mendes]

Let me first deal with the preamble to your question.

First, I did not base these arguments only on the civil society basis of the conventional rule. I'm basing it on the elected members deciding to put in place standing orders that will then create the conventional rule.

So it's quite a diversion to say that I'm basing it on civil society--but I'm hoping that civil society would strongly support it, as they did, as they indicated they would, during the prorogation debate.

[Ed Holder, Conservative, London West, ON]

As “some” did, to be clear.

[Prof. Errol Mendes]

Well, we could go back into that debate again. However, the power of the Speaker, as was evidenced yesterday, comes from the Speaker being, if you like, the guardian of the rights and privileges of the elected members of the House of Commons--

[Ed Holder, Conservative, London West, ON]

Sir, I don't mean to interrupt, but we have limited time.

[The Chair, Conservative, Joe Preston]

I'm going to stop you, Mr. Holder. You're past your time--

[Ed Holder, Conservative, London West, ON]

But, Mr. Chair, I did ask a question, which was not answered. I asked him where the Canadian precedent was, and I would appreciate an answer.

[The Chair, Conservative, Joe Preston]

We'll see if during Mr. Christopherson's questioning we can actually get that answer, too. We got one of his during one of ours. It sounds like we're trading today.

Go ahead, David.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks, Chair, I appreciate that.

Before I go to my questions, I want to do a follow-up. You know, what concerns me is not so much that the government members know what the law of the Constitution is and they're spinning it; that wouldn't bother me as much as the concern that they really don't get it that the ultimate source of power in Canada comes from a majority vote of the House of Commons.

Correct me if I'm wrong, but after an election, there has to be a vote at some point to determine whether the person who is currently the Prime Minister continues to have the confidence of the House, which is a majority vote. The people don't elect a Prime Minister; they elect a House of Commons. If that person can't get a majority vote, and we've just had an election, the GG has the option of going to anyone else in the House who she has reason to believe might be able to muster a majority vote of confidence, because that's the source of power.

Did I say anything that was incorrect?