I hope the committee has received the article I wrote last year, “The Constitutionality of Prorogation”. I sent it ahead for translation. I'm happy to speak to that article in questions or to my comments in this brief statement.
I should also say that I've just completed teaching my constitutional law course at the University of Alberta, and the one promise my students extracted from me before the exam was to have no questions on prorogation. As soon as I made that promise I regretted it, because as I sat down to draft the exam, I thought how perfect an essay question this is. It combines all of the wonderful and rich facets of our constitutional tradition, and there is a lot to disagree about.
Let me for a moment remind you of a little history. In the days surrounding the Prime Minister's request to prorogue Parliament, newspapers variously accused him of insulting the House of Commons, undermining the rights of Parliament, and stifling free speech. A majority of parliamentarians, it was reported, objected to the manoeuvre, and there was public outrage and protest from across one end of the country to the other, said The Globe and Mail.
I am speaking, of course, about August 1873, when Lord Dufferin prorogued the second Canadian Parliament at the request of Sir John A. Macdonald, a Prime Minister under siege because of the emerging Pacific scandal. But I would suggest that the lessons of Canadian history extend even farther back than that. In the period before responsible government, prorogation was an often abused power of colonial governors as a way of dispensing with the clamorous presence of legislatures that they would prefer to govern without.
Jonathan Belcher, Jr., the Lieutenant Governor of Nova Scotia, frequently prorogued the legislature of that colony when he felt like it. The Nova Scotians won't be surprised to hear that the elected representatives had very different ideas about how to govern things. The reaction in the 1760s against prorogation was part of a long road to responsible government and a more democratic constitutional order.
We arrive today at a period when prorogation has again emerged from the constitutional shadows. We are confronted by the opportunity and challenge of ensuring that our parliamentary democracy functions in keeping with our constitutional ideals. This is the principal lesson of our constitutional history. Canada possesses a Constitution, in the words of the Constitution Act, 1867, “similar in Principle to that of the United Kingdom”, meaning that in addition to its roots in the venerable traditions of parliamentary government, Canada is also guided by unwritten and flexible constitutional conventions. Our Constitution can and does change over time.
Those conventions are often clear in principle but sometimes contestable in application. Like common law itself, the principles that form the foundation of our Constitution are themselves elucidated, reinforced, and sometimes even forged in moments of disagreement.
For that reason, I am relatively sanguine about what others are terming a constitutional crisis. In debating the constitutional moments of December 2008 and 2009--and we have been debating them, not only Parliament but in newspapers, classrooms, academic journals, on blogs, and in living rooms--we're working toward a better understanding of our Constitution and its underpinnings.
I think we are in the midst of constitution-building. And the ongoing debates among citizens, academics, and parliamentarians will ultimately shape the constitutionality of prorogation in the broadest sense.
There are several ways to alter the manner in which the Parliament of Canada can be prorogued. I'll mention them just briefly. I think these types of changes exist on a continuum, from the strict formality of a constitutional amendment on one end, to the more flexible and ongoing process of shaping a constitutional convention on the other. I have little doubt that, carefully drafted, a constitutional amendment under section 44 of the amending formula could constrain the ambit of the Prime Minister's discretion to seek prorogation from the Governor General. I think it's equally the case that legislation could accomplish similar constraints.
The Supreme Court of Canada has made it clear that the crown prerogative, of which the power to prorogue is a clear example, can be abolished or limited by expressly drafted legislation.
There's an important distinction, however, between what the Constitution allows and whether such a change is advisable. Just because the Constitution says you can do something, of course, does not necessarily mean you should. Just as we would hopefully agree that a Prime Minister should not request an open-ended or lengthy prorogation on the eve of a vote of non-confidence that he is likely to lose, so we should also be cautious about over-legalizing and unduly constraining parliamentary processes that for the most part have worked very well over our history.
That is then the challenge for all of us: to fashion parliamentary rules, processes, and conventions that respect Parliament, responsible government, and democracy. The Canadian Constitution depends on noble efforts such as this.
Thank you.