Procedure and House Affairs Committee on April 29th, 2010

[Prof. Errol Mendes]

Let me answer that question. There has never been a case--

[Ed Holder, Conservative, London West, ON]

Ah! Thank you.

[Prof. Errol Mendes]

--that deals with—

[Ed Holder, Conservative, London West, ON]

That's it. That's all.

[Prof. Errol Mendes]

He doesn't even let me finish the answer.

There has never been a situation where the Governor General has refused to sign legislation. Does that mean to say that there isn't a conventional rule, that the Governor General cannot refuse to sign legislation?

I think the trap that Mr. Holder wants me to go into is one that is irresponsible, and I will not fall into it.

Thank you.

[Ed Holder, Conservative, London West, ON]

So you will not undertake to this committee to do that, to put that in writing, sir?

That is my ask on behalf of this committee, Chair.

[The Chair, Conservative, Joe Preston]

On behalf of this committee, we'll ask you if you can supply us with any case where that has been done, where advice has been given from a Speaker of a House to the Governor General, or the Lieutenant-Governor on a provincial case. Please let us know.

[Prof. Errol Mendes]

I've just answered the question.

[The Chair, Conservative, Joe Preston]

Okay. Thank you.

We've gone over our time with Professor Mendes.

We have to thank him for being here today.

We now welcome Professor Russell.

Do we need to suspend to move from one witness to the other?

[Some hon. members]

No.

[The Chair, Conservative, Joe Preston]

Then let's do it.

I would suggest that we move forward with Professor Russell for an opening statement.

I know you've just run in, you've hurried out of a cab, and all of that security stuff.

[Professor Peter Russell, Professor Emeritus, Department of Political Science, University of Toronto, As an Individual]

Porter screwed up this morning. They'll probably sue me...and cancel.

No, they're usually pretty good.

[The Chair, Conservative, Joe Preston]

Be careful of what you say.

[Prof. Peter Russell]

Pardon me?

[The Chair, Conservative, Joe Preston]

Be careful of who you say something about.

[Prof. Peter Russell]

Yes, I know. Maybe I can resort to parliamentary privilege today.

[The Chair, Conservative, Joe Preston]

All right, Professor Russell, it's great to have you here today.

[Prof. Peter Russell]

I do have an opening statement.

[The Chair, Conservative, Joe Preston]

Please carry on then. Thank you, welcome, all of the above--now let's go.

[Prof. Peter Russell]

I am very pleased to be here, Mr. Chairman.

The question before us is one of profound importance to Canadian parliamentary democracy, the rules of which are not written in law books or the formal Constitution; they depend mostly on agreed-upon principles, practices, and conventions, meaning that you people--you members of Parliament from all parties--are required to agree. When you don't agree, you leave the country without rules and you leave your Governor General, whom I sometimes advise, in the position of being a referee in a game in which the players don't agree on the rules. So I am delighted to see members of all parties here trying to work on this one issue of prorogation. It is just one of several on which consensus is lacking and convention is needed, and I'm very pleased that you're here.

You have my statement. I'll go over it quickly and tell you some things I'm sure you know.

Prorogation is the ending of a session of Parliament without dissolving Parliament. Normally it's an uncontentious event in the life of Parliament, and not controversial. Its normal use is to bring a session to an end when much of the work of the session is done and there is a recognized need for a seasonal break. A new session of Parliament is opened after the break with a Speech from the Throne setting out a new government agenda. That's the norm, and indeed all the prorogations that I'm familiar with have basically been of that kind.

The power to prorogue, the legal power to prorogue, does not rest with you. It does not rest with the Prime Minister. It quite clearly rests with the crown. As of King George VI’s letters patent in 1947, that particular power of the crown, along with the power to dissolve and summon Parliament, was to be exercised by the Governor General of Canada from then on.

Well-established constitutional convention requires that the Governor General exercise this power only--only--on the advice of her chief constitutional adviser, the Prime Minister of Canada. That's the normal rule.

Recent controversy has arisen over whether there are any circumstances in which the Governor General should question and possibly decline a Prime Minister’s request for prorogation. In the two situations that have provoked the controversy, we're concerned with whether prorogation was being advised by a Prime Minister to avoid the government’s accountability to the House of Commons.

Prime Minister Harper’s advice on December 4, 2008, that the Governor General should prorogue Parliament appeared to many to be aimed at avoiding an imminent vote of confidence in the House of Commons. As you know, the confidence of the House of Commons is literally the licence to govern in Canada. The Prime Minister’s advice on December 30, 2009, that the Governor General should prorogue Parliament appeared to be aimed at avoiding the scrutiny of a House of Commons committee looking into the treatment of Afghan detainees.

Constitutionally, this controversy raises the issue of whether any--any--discretionary power at all is reserved to the Governor General in exercising the power to prorogue Parliament.

In Canada's system of parliamentary government as it's evolved over about 150 years, constitutional convention requires that the Governor General normally exercise the legal powers vested in the crown on the advice of ministers responsible to the House of Commons to achieve a responsible government.

However, there's a strong case for holding that in certain exceptional circumstances the Governor General, as a representative of the crown, must hold in reserve a discretionary power to refuse a Prime Minister's advice.

The principle governing the use of such a reserve power of the crown would be that its use--a discretionary decision of the Governor General--is necessary to prevent the undermining of responsible parliamentary government. That's the key to when it's proper for the Governor General to decline to follow the advice of a Prime Minister.

In the case of prorogation, one can conjure up a situation in which a Prime Minister facing defeat in the House of Commons advises the Governor General to prorogue Parliament, not for a few weeks as was done on December 4, 2008, but for an indefinite period of time: “Your Excellency, just prorogue Parliament, and when I'm damned ready for it, you can bring it back, and I'm not saying when that will be.” Now, if the Governor General had no discretion--none--and had to always do what the Prime Minister advised, then, I think, given that possible situation, parliamentary democracy would be in great jeopardy, if that advice had to be followed.

Nothing like the situation I've conjured up has happened in Canada. Nonetheless, the possibility that such advice “might” be rendered surely creates a strong case for holding that in receiving prime ministerial advice for prorogation, the Governor General has to be regarded as more than a clerk--a royal clerk, a clerk with a crown on--who just says, “What do you want? Oh, you want prorogation. Yes, here it is. I'm not going to ask any questions. Go away; prorogue the people's House, the biggest democratic institution in Canada. I don't know what you're doing, but I'm just a clerk here. I have to do whatever you tell me to do.”

In our constitutional system, we look to constitutional conventions for the rules governing the proper use of legal powers. That's what conventions are; they're political agreements. That's why I emphasize it's crucial for you folks to agree on the proper use of political power. In this case it's the proper use of the Governor General’s legal power to prorogue or to refuse a prorogation.

Does the Governor General ever have the right to reject a Prime Minister’s advice to prorogue Parliament? If the Governor General has that reserve power, under what circumstances can it be used? Under what circumstances is it proper for her to refuse a request and advice to prorogue?

Do we have in Canada today, as I speak, a constitutional convention governing this situation? Remember, the situation isn't the normal advice for proroguing toward the end of a session when everything is done and it's time for summer holiday, Christmas break, or whatever. It's when it's highly controversial and a large part of the country and the political system think it's a way of avoiding accountability to Parliament. Has the Governor General reserve power in these situations, and precisely under what circumstances is it to be used?

In paragraph 9--you'll forgive me--is a little diversion about how you figure out--how you figure out--whether there is a constitutional convention. They're spooky things, aren't they? You can't just look them up in a book. They're not even like your Standing Orders. Speaker Milliken has an easier job, in a way. He has Bourinot and all those books. Constitutional conventions are not easily identified, particularly when they're hotly contested.

The Supreme Court of Canada made a decision on the occasion of patriating the Constitution without provincial consent. The Government of Canada was going to change the Constitution of the country in fundamental ways by going to Britain without the consent of the provinces. That situation was not governed by anything in the Constitution Act, 1867. It is silent on amending the Constitution, but is governed entirely by constitutional convention.

The Supreme Court had to work hard on whether there was a constitutional convention in that situation, and how to go about finding out if there was one. I will quote a paragraph on how the Supreme Court laid down a methodology--not just for them but for us too. It's a pretty good methodology. It's been widely accepted by those who write about the Constitution and teach it in our schools and universities. It's worth reading carefully.

This is what the Supreme Court of Canada said in figuring out whether there was a constitutional convention requiring provincial consent before asking Britain to amend the Constitution of Canada.

They began with, “We have to ask ourselves three questions”.

Notice it's three questions. A lot of people think it's just their first question, “What are the precedents?” They say, okay, so that's it: “What are the precedents?”

But the Supreme Court quite rightly goes on, drawing on massive literature on the writing on constitutional convention. They didn't make this up. They were like students reading all the key books and pulling out of those books what they learned.

They second thing they say you have to ask, which is crucial, is “Did the actors in the precedents”--the key political people, really, in the precedents--“believe that they were bound by a rule?” There was a rule and they were bound by it, and by that they mean politically bound--morally bound, if you like.

The third one is the one that I find is most often forgotten: “Is there a reason for the rule?” The Supreme Court adds an important thought that we should all keep in mind:

A single precedent with a good reason may be enough to establish a rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.

[The Chair, Conservative, Joe Preston]

Professor, we're limited to one o'clock as our end time, and we'd like to get some questions in.

[Prof. Peter Russell]

I want you to get this, though.

Have you had anyone discuss this Supreme Court ruling on how you identify convention?

[The Chair, Conservative, Joe Preston]

No, no, and I'm not suggesting--

[Prof. Peter Russell]

Are we not talking about conventions?

[The Chair, Conservative, Joe Preston]

Yes.