Evidence of meeting #26 for Procedure and House Affairs in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was convention.
A recording is available from Parliament.
Pierre Paquette Bloc Joliette, QC
We must simply remember that all of this flows, as has already been mentioned, from the prorogation December 30th last. We began our work and heard witnesses, but we did not hear that many of them. I do not think we should abandon our study.
In my opinion, we should resume our study, but perhaps rather by setting up a smaller subcommittee of the House of Common's Standing Committee on Procedure and House Affairs. Perhaps we should not be asking the full committee to do this work, given that there are other items. However, I do not think it would be appropriate at this time to abandon this issue simply because there is no very clear path in front of us.
I am therefore open to pursuing this work in another way, perhaps through the establishment of a sub-committee. All in all, my feeling is that we must pursue this work.
Conservative
The Chair Conservative Joe Preston
I'm sorry if I've given the impression that I'm suggesting that. I am suggesting that we hear all of what we have.
Mr. Paquette, you were here for most of this, but many weren't. We're trying to bring them up to the same speed we're at and then have the committee decide whether a subcommittee is appropriate, how many weeks will we set aside to carry on. We're not yet suggesting anything about our priorities.
The next part, then, is proposals made in respect of establishing a constitutional convention.
Andre.
Committee Researcher
These are in no particular order.
Mr. Mendes had suggested that in a sort of cumulative effect, amendments to the Standing Orders and enacting legislation would in fact be tantamount to a binding constitutional convention, in his view.
Mr. Russell suggested in his opinion that the most enduring manner to restrict the use of prorogation would be for all the parties in the House to enter into unanimous political agreement to abide by certain principles with respect to prorogation. He noted it would require the key players to abide by these principles over time for this to have any strength, or any teeth, and over time that might result in a constitutional convention.
Mr. Wiseman was also of the same opinion, in that such an agreement could provide some relief or some guidance to a Governor General who was placed in a difficult situation.
Conservative
The Chair Conservative Joe Preston
Are there questions on the constitutional convention piece?
It's a fairly specific piece. Conventions happen over long periods of time, not because you say they're happening. This really was the information we were given.
Yes, Mr. Reid.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
On this, Mr. Chair, if anybody wants to consult it, the best source on constitutional conventions is actually Professor Andrew Heard's book, Canadian Constitutional Conventions.
One of the things he is just repeating is that the British writings on the subject say there are two ways a convention can be achieved. One is through the unanimous consent of all the relevant actors, and the other, if one of the actors is not agreeable to it, is ultimately that it gets tested in the political arena, because it's conventional. These things are politically enforceable, which means by an election. So if there are two different sides with different opinions on the appropriate course of action, you have an election to resolve the matter, as in 1926 over the powers of the Governor General, where, effectively, that was the subject of the election. This means that if there isn't an agreement—and I think, as a practical matter, there might not be agreement between the government and opposition parties on this—the only way to actually test whether a prorogation is legitimate is to have something occur like this.
Back at the end of 2008, the Prime Minister asked for prorogation. He was granted it. The House came back eventually. If the government were then defeated on that issue, an election would follow and we would figure out whether, in the end, people agreed with the former government or the former opposition.
So I think we could reflect something like this in what we write, that ultimately there's not really anything we can do here that would result in it being a convention or not.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
Just for some clarification, how do they differentiate between a constitutional convention and a referendum?
Conservative
Committee Researcher
A constitutional convention is a practice that is established over time. A referendum is a poll of the people at one particular instant.
Liberal
Conservative
The Chair Conservative Joe Preston
It may become a convention if it were a referendum that was passed and then followed. Fifty years from now, 15 people could sit around a table like this and say that's a convention, because it's actually happened.
Monsieur Paquette.
Bloc
Pierre Paquette Bloc Joliette, QC
I had indeed raised my hand.
Over the summer I met a constitutional expert and used this opportunity to ask him what is a constitutional convention. He gave me an example that I found very telling. On an escalator, whether in the subway or a store, everybody stands on the right-hand side to leave space on the left for those who want to climb the steps. Not long ago, I was on an escalator with my young son and we were blocking the way for those who wanted to climb. People started to get upset and we moved to the right-hand side. This is a constitutional convention.
As that professor explained to me, the funny thing is that this is a convention, but one that allows the commission of an illegal act. Indeed, one is not supposed to climb the steps of an escalator, one is supposed to keep one's hand on the railing. I believe this corroborates what we have been told in more technical terms.
Conservative
The Chair Conservative Joe Preston
But there's no law anywhere that says you must enter at the right of an escalator. That's a convention.
Ms. Foote.
Liberal
Judy Foote Liberal Random—Burin—St. George's, NL
Looking at section D here, with respect to a constitutional convention, there seems to be a marked difference between what Mr. Mendes proposed and what Mr. Russell and Mr. Wiseman suggested.
Was Mr. Russell or Mr. Wiseman asked about whether or not a constitutional convention would be something we might want to consider, or were they very explicit that a political agreement among parties would be a better way to go?
Committee Researcher
Mr. Russell and Mr. Wiseman brought that forward. They were not prompted on that.
In terms of Mr. Mendes's suggestion, that was his view. Whether or not what that amounts to is...you know, it's his view that he put forward, so I won't comment on it.
Liberal
Judy Foote Liberal Random—Burin—St. George's, NL
There just seems to be such a difference of opinion in terms of—
Conservative
The Chair Conservative Joe Preston
Sometimes it's the case that you have three experts in the room, each with a different opinion. Well, who's the real expert? Let's bring in a fourth and tell them they're all wrong.
Conservative
Conservative
Harold Albrecht Conservative Kitchener—Conestoga, ON
I think there really wasn't that big of a disagreement on this point. It was simply a matter of pointing out that you could get four political parties today to agree to x, but unless they were to keep doing that over time, it may never amount to more than a one-time deal, because you could have the players change next time around and the whole thing would be out the window.
So the convention needs repetition for it to become a convention.
Conservative
The Chair Conservative Joe Preston
Are there further questions on the establishment of a constitutional convention?
All right, let's look at the testimony on proposals made with respect to the Governor General.
Andre.
Committee Researcher
In both instances the witnesses had suggested modifying or altering to do with the relationship between the Governor General...that presupposed that the system itself with respect to prorogation was fine in the status quo. In fact one of the witnesses, Mr. Monahan, stated that hard cases make bad law, and that if we want to fix something, we ought to look at the process through which a Governor General is appointed. We should try to make that as open and accessible to all the parties in the House as possible, or at the very least the Prime Minister should not appoint someone over the objections of the opposition.
Mr. Miller suggested that Parliament ought to convey its desire to the Governor General's office that it take steps to become more transparent in its decision-making. He provided the example that the Governor General's office could make public statements about the criteria the Governor General would use for decisions regarding the use of the Crown's reserved powers.
Conservative
The Chair Conservative Joe Preston
Are there questions about this section, about the powers of the Governor General?
All right. It's pretty straightforward.
Then we have other options and “prescriptive statements”, which is a good catch-all phrase.
Committee Researcher
This is where I put, to use the chair's expression, one-off options. Some of them were in fact means and not ends, so I ended up putting them there. They simply said this is what should happen, but they did not suggest the avenue to get there, whereas the paper was sort of organized by avenues. So they ended up being in this category.
Mr. Walsh brought up having a look at the letters patent of 1947. Mr. Mendes suggested that the Speaker had a role to play in bringing the will of the House to the Governor General. It should be noted, of course, that several witnesses, including Mr. Franks and Mr. Monahan, said that the Governor General was free to consult with as many people as he or she saw fit, but only the recognized legal adviser could provide legal advice to the Governor General.
Mr. Franks ends up in this category with his suggestions that do not have means to attain these ends, necessarily, but he thought it might be fruitful for the committee to consider preventing Parliament from being prorogued until a session had lasted a decent period of time, limiting the duration of a prorogation, or requiring the Commons’ support for a prorogation.
Mr. Cyr proposed an interesting measure that was at least translated as a “suspensive condition censorship measure”. Under this option the Prime Minister would be required to obtain the approval of the majority of the House of Commons for a prorogation, and a failure to do so would be tantamount to a loss of confidence. If the Prime Minister did not have the confidence of the House anymore, the Governor General would not be required to take the Prime Minister's advice.
Mr. Cyr also proposed a recall mechanism that could be put in place to bring the House back in case a prorogation lasted longer than seemed desirable.
Then Mr. Heard, as was mentioned earlier about amending the Standing Orders of the House of Commons, said that, circumstances permitting, it would be best to obtain the consent of the majority of the House of Commons prior to a prorogation. He did not mention specifically what legal measure he would implement to arrive at this end.
