Procedure and House Affairs Committee on May 11th, 2010

[Hugo Cyr]

The literature dealing with rationalized parliamentary government frequently discusses mechanisms to ensure that dissolution or prorogation happens only with the approval of elected members. It exists in various countries that have a parliamentary, non-presidential regime or, at the very least, a parliamentary or semi-presidential regime.

The problem is that we tend to compare ourselves to the presidential system, which has a strong separation of powers, such as in the United States, for example, which has an elected president and an executive that derives all of its legitimacy from a vote. The president is not elected directly but by the electoral college. There is a risk in trying to import concepts from the systems of other countries with whom we may share a common language but not any institutional similarities. As far as those institutional similarities go, British parliamentarism may be a lot closer to other forms of parliamentary government, such as Germany's, than ours is to that of the United States.

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

The next question is for all three witnesses.

From listening to discussions with our previous witnesses about conventions and the attempt to develop conventions, it seems to me that we are all at fault--not just the witnesses, but also members of the committee, including me--in assuming that these conventions would, in some respects, be binding on the actors involved. That seems to suggest that we're assuming that they would be binding on the politicians. I think that's probably a mistake. I think if we could develop a convention, it would be one that would be binding on the Governor General. It would really be a question of being a convention on when it is inappropriate to receive advice from the Prime Minister and to reject that advice.

In the same way, when a Prime Minister comes and says, “I've just lost an election, but I'd like to stay on anyway”, the Governor General, necessarily, is bound by convention to reject that advice and say that he or she is going to go to the leader of the party that has the majority in the House in such a situation.

Similarly, it seems to me that this isn't really about limiting existing reserve powers. Rather, it is about redirecting powers.

I thought about how to ask this question. I'm not sure this is the best way, but let's try this out. We have two prorogations that have occurred in the past couple of years, and they are the subject of our hearings. Let's say that you had been the person on the telephone offering counsel to the Governor General at the time she received advice from the Prime Minister to prorogue. What advice would you have given? What kinds of rules would allow the counsel to reject the advice the Prime Minister was giving?

I'm not sure who to start with.

[The Chair, Conservative, Joe Preston]

Make it a short phone call.

[Dr. Eric Adams]

One of the things that I think has come up in these hearings is the scope of the Governor General to take advice. I think an important distinction here is the ability to take advice and the ability to gather information. I think sometimes those concepts have been blended here, and unfortunately so.

I think it's clear in our constitutional system that the Governor General is to seek advice from the Prime Minister. But I think she's fully open to availing herself of all kinds of information that will help her make her decision as to whether she should accept that advice or not. That can include, I think, what we call in the legal world taking judicial notice of notorious facts: Is there a government-in-waiting ready to take over? What do scholars and pundits and the public think about what is happening?

Our conventions have a kind of democratic legitimacy to them through this information gathering that the Governor General is fully able to engage in. I wanted to make that point.

If I were on the phone with the Governor General on the two prorogations, and I make this argument in the article I've penned, I would have thought that she made the right choice. And I think she made it artfully, in that I don't think it was a rubber-stamped decision. There were considerations to weigh, and there was a calculus to weigh. If the factors had been slightly different, her decision might have been different.

Taking in this information gathering, as I've suggested, and a number of considerations, she made artful choices. If you change some of those considerations, then we might see different results.

Peter Russell presented the most compelling case. What if a Prime Minister is about to lose a vote of non-confidence, and he or she comes to the Governor General and says, “Let's prorogue. I don't know when we're coming back. Maybe it's 12 months from now. But I'm going to govern for the next 12 months. A day before, I was about to lose the confidence of the House of Commons. I'm going to appoint judges to the Supreme Court, and I'm going to continue to hold the reins of power.” Surely a Governor General is able to say that this is inappropriate.

[The Chair, Conservative, Joe Preston]

Mr. Reid, your time is now complete. We'll see if we can get those answers through other questions. That'll be the best we can do.

Mr. Paquette, you're up.

[Pierre Paquette, Bloc, Joliette, QC]

Does anyone want to respond to Mr. Reid's question? It is quite relevant, in my view.

Mr. Wiseman, go ahead.

[Dr. Nelson Wiseman]

I'll respond. Mr. Reid raised the issue of the last two prorogations. They were very different, of course. The last one, the most recent one, was a slam dunk.

The one that was really contentious was the first one. This one stirred up a hornet's nest because it was perceived by the public as being unfair. Last time we had people demonstrating in the streets for a coalition and many more people demonstrating against the coalition. Public opinion was overwhelmingly opposed.

This time we didn't have anybody in the streets saying that they think this prorogation is an excellent idea.

[The Chair, Conservative, Joe Preston]

We're going to have to suspend for a minute. That is a fire alarm.

[The Chair, Conservative, Joe Preston]

We will call the meeting back to order. I'm happy to see you all gathered back very quickly.

Monsieur Paquette, you were up, and some of the witnesses were still answering a question, which was really Monsieur Reid's question. We'll carry on from there. We'll give you a full seven minutes, because we forgot to stop the clock and apparently it was 25 minutes.

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Wiseman, could you finish what you were saying? You started to answer Mr. Reid's question.

[Dr. Nelson Wiseman]

Thank you. I'm trying to recollect the question.

[Pierre Paquette, Bloc, Joliette, QC]

Maybe we can ask the--

[The Chair, Conservative, Joe Preston]

It was to do with the powers of the Governor General.

[Dr. Nelson Wiseman]

These two prorogations were very, very different, except that this one was really a slam dunk.

Ned Franks said--and I shared this with Scott Reid outside--and I was struck by this comment, that the Constitution is what happens. He also cited a case in King Charles in the 1600s. Mr. Cyr discussed what happened 500 years ago, what happens in other systems. If the Constitution is what happens, the most important thing is what has happened recently.

The reason prorogation is the issue it is, from a legal point of view, is not so much what happened on December 30, 2009; it's what happened on December 4, 2008. Adrienne Clarkson also points this out in the forward to this book. She felt that had the government been defeated on an issue of confidence within the first six months after an election, she would have shopped around for another government to see if it was viable. Here we had a case where Parliament had really not conducted any business in December 2008.

We have had a transformation in the constitutional culture in terms of public opinion.

I am throwing together a number of thoughts, and one is this. We have talked about institutional transfer. What has the experience been in the provinces? I don't think you're going to find anything there because prorogation hasn't been controversial. I taught provincial politics for 25 years and I never ran into the term in anything I read, although it was more on the political side than on the governmental side.

On constitutional transfer, institutional transfer from other countries, Britain is the most relevant. We've seen it in Canada. But we've noticed that constitutional paths diverge. We noticed that Ontario's committees continue during prorogation; your committees cease to exist.

Mr. Hall's opinion is that this isn't constitutional. Why not? We go along different paths. And the path we're on now, which I think is dreadfully unfortunate, is going to lead to a different political configuration in terms of a coalition. It's basically telling the opposition that unless you get your act together before the Speech from the Throne, this government can do anything it wants with prorogation and manipulating the House for up to one year.

I ran into Jack Layton and David Smith on separate occasions during the month of January 2009 when the coalition issue was up in the air. The point I made...and I heard Jay Hill make it on TV, and to me it was very compelling: “You heard what the government said in the fiscal update before you voted for the Speech from the Throne. Did you or did you not have confidence in the government? You went ahead and voted for the Speech from the Throne.” There is no hemi-, demi-, semi-confidence. I think Mr. Walsh said this: you either have confidence or you don't have confidence in the government.

We're in a situation now where the opposition wants to rein in the government but not throw it out because they're afraid of the political consequences. They might not do well. That's a calculation you do. You're driven more maybe by polls than by principles, but you have to get elected; I can stick to the classroom.

[The Chair, Conservative, Joe Preston]

Thank you.

[Hugo Cyr]

I will quickly comment on those two points.

With respect to the last point, I said that it was necessary to limit the discretionary powers of the Governor General. Faced with a Prime Minister who had the confidence of the members, the Governor General had no choice but to prorogue Parliament. She might have been forced into it or agreed reluctantly. But she did not have a choice, and that is the reason I think we are now discussing possible amendments. To prevent such a situation from happening again.

As for the first point, the problem for the Governor General was knowing whether the Prime Minister still had the confidence of Parliament. There are two possible interpretations. Some say that in order to establish that the Prime Minister has lost the confidence of Parliament, there must be a vote in the House to that effect. Others say that other pieces of information are sufficient to prove that the Prime Minister has lost the confidence of Parliament: letters, parliamentary debates and so forth.

In the midst of such a controversy, I would have recommended that the Governor General wait, given the fact that a confidence vote was going to be held soon. Obviously, she did not do what I would have recommended.

I would have expected her to tell the Prime Minister that he was serving as acting prime minister, pending a new confidence vote. She did not do that, given that a Supreme Court judge was appointed during prorogation, as were some senators, something that an interim government cannot do.

[Pierre Paquette, Bloc, Joliette, QC]

First of all, I want to tell Mr. Wiseman that, during the first week of the election campaign following Mr. Harper's broken promise to hold elections on a fixed date, the Bloc Québécois did most of its campaigning on that point. That may round out the story.

Now, I want to come back to the method. The most recent prorogation took place when Parliament was not sitting. It happened while Parliament was on Christmas break, so it was pretty hard to consult the members of Parliament.

The House could adopt a motion to the effect that the Prime Minister cannot approach the Governor General without having first consulted the House, otherwise he would be deemed to have lost the confidence of the House. Could we put forward such a motion on an opposition day? If adopted, could it actually become law? Is it necessary to change the rules of the House? How would we have to go about it, in your opinion, Mr. Cyr?

If anyone else would like to respond, feel free.

[The Chair, Conservative, Joe Preston]

A very short answer.

[Hugo Cyr]

In my view, a motion of that nature would help to clearly establish whether the government in power had the confidence of Parliament or not. Once the suspensive condition were met, the Prime Minister would be deemed to have lost the confidence of Parliament, and that information could be conveyed to the Governor General. That way, it would not matter if it happened while the House was in session or not.

[Pierre Paquette, Bloc, Joliette, QC]

I....oh!

[The Chair, Conservative, Joe Preston]

We're going to have to—

[Hugo Cyr]

There was something crunchy.

[The Chair, Conservative, Joe Preston]

I know. You did a great job of letting them answer Mr. Reid's question. I'm assuming that Mr. Christopherson will do the same for you.

Mr. Christopherson, you're up.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Chair, we can see you're not infallible.

I want to turn to Professor Adams. Just a couple of quotes from your brief, at the very end:

There are good reasons, beyond the allure of tradition, for keeping our constitutional conventions as they are—unwritten, flexible, and the subject of occasional controversy and disagreement.

Unwritten constitutional conventions similarly enable the Governor General to respond to new and unanticipated situations moored to principle but not constrained by prescribed text.

What struck me was not so much on our side of it, if you will, the House, but with the GG. I was born in 1954, so my mum's generation was still incredibly deferential to the monarch, and still is--not just the respect we all have, but that deference, it's almost mystical. The generation following me has very little of that left. So by leaving things uncertain but still maintaining an appointed GG, how do we square that with democratic principles?

I'm once removed here, but I want to get your sense of the relationship between responsible government, accountability, and democracy as the foundation for all our actions, and yet at the very top of our government pyramid sits someone who is an appointee.

I'm thinking of the ridiculousness of a whole country sitting by its TV sets captivated by a pair of doors. We watched for two hours. Then when it was all over we didn't even get an explanation from the person who made the decision. I'm having a great deal of trouble, and I wouldn't mind your thoughts on how we are doing all this at the same time. We are talking about responsible government, accountability, democracy, and then we have the sight of someone who is appointed making a decision about who the government is and we don't even get an explanation.

I'd like all three of you to give me your thoughts on that, please.

[Dr. Eric Adams]

I'm happy to do so.

We have a constitutional system in which tremendous power is held by a number of appointed officials. We've got nine judges on the Supreme Court of Canada to make important decisions every day about our rights and freedoms and the powers of government. We're not rioting in the streets about anti-democracy in that institution. We've got appointed senators. We've got the head of the CRTC. That's an appointed position, and it affects the types of shows I can watch. We also have a Governor General who has a number of prerogatives as head of state--she doesn't use them often, but they are there--to protect a constitutional system that has many layers and in which different arms of government coordinate in important ways.

So to me this is not the antithesis of a democratic system; it is fully democratic in that its working parts function cohesively. When those parts cease to work appropriately--and maybe we have moments when we want to add democratic impulses to certain of our appointing processes, say how judges get appointed to the Supreme Court--we can democratize that process to a certain extent. But I don't think we're going to start electing judges in this country, for the very good reason that appointed officials have important roles to play in our constitutional democracy.

So I'm not troubled by the role the Governor General plays as head of state. Her function is to protect the Constitution for the citizens of Canada where elected representatives may on occasion depart from constitutional conventions that are important.