Canada's constitutional 'black box'

by Lorne Sossin and Lorraine Weinrib

This commentary was first published in the National Post on December 11, 2008.

Last Thursday, Governor-General Michaelle Jean granted a request from Prime Minister Stephen Harper to prorogue Parliament until late-January. She thus protected the Conservative government from a confidence vote that would have likely toppled the minority government, and perhaps prompted her to invite a Liberal-NDP coalition, supported by the Bloc Quebecois, to form a government. We would like to be in a position to share with you the arguments that the Prime Minister submitted to the Governor-General and her reasons for accepting them.

But here is the problem: We do not know the full range of arguments that the Prime Minister put forward. Nor do we know the basis of the G-G's decision. We cannot confirm whether the Ms. Jean placed any conditions or qualifications on Mr. Harper's powers during the period in which Parliament will not meet. We do not know if she indicated how she would proceed if the government falls in late-January when Parliament meets. We have only this terse statement, offered by Prime Minister Harper: "Following my advice, the Governor-General has agreed to prorogue Parliament."

The Prime Minister invoked constitutional tradition when he refused to reveal the content of the discussion, which we think lasted two-plus hours. In a modern, constitutional democracy, it is simply not acceptable for crucial public decisions, which affect the very legitimacy of the exercise of public authority, to take effect with no set procedure, no reasons provided and no justification offered. In was ironic indeed that Mr. Harper sought to undo what he described as a "backroom" deal to steal power in a closed door meeting of his own.

Canada's parliamentary traditions have evolved over time to adapt to the fundamental constitutional principles of modern governance. For example, the British North America Act (now called the Constitutional Act of 1867) authorized the Queen and her representatives to invalidate legislation passed by the federal Parliament and also authorized her representative, the governor-general to invalidate legislation passed by the provincial legislatures. Eventually, these powers fell into disuse because they were inconsistent with the principles of self-government, democratic legitimacy and federal arrangements.

The time has arrived for the governor-general's role to adapt to Canada's modern constitutional principles. These principles dictate that public authorities must respect the rule of law and exercise their discretion with the appropriate degree of accountability. There is no room for constitutional "black boxes" in 21st-century Canada.

The Governor-General's exercise of her reserve powers to prorogue Parliament must be based on good-faith arguments consistent with Canada's constitutional principles. To subject the PM's advice to meaningful scrutiny, it is imperative that the Governor-General have access to independent expertise (that is, her own counsel). This advice should come from an individual, or number of individual experts, designated before the particular crisis arises.

The Governor-General serves as guardian of the integrity of Canada's parliamentary institutions. To perform this role, she must have the capacity and legitimacy to refuse to follow the advice of the prime minister, when that advice is inconsistent with the applicable constitutional principles. In addition, the governor-general's decision must be as transparent as possible. Canadians must know, for example, if she attached any conditions to her decision --and if not, why not?

There will be considerable speculation as to how the Governor-General might respond if the Prime Minister returns to ask for a further prorogation, or for a dissolution of Parliament. In this climate of uncertainty, the Prime Minister may well have received a warning from the Governor-General, or other insight into her ultimate disposition of such a request should it come to pass. Given that the opposition parties have expressed a lack of confidence in the Prime Minister (albeit not yet in a confidence motion), is this additional advantage justified or appropriate?

It may be that one day we will look back on the Governor-General's decision to prorogue Parliament as a decision that avoided an unnecessary constitutional showdown. Or, we might come to regret the creation of a precedent that further concentrated power in the hands of the prime minister at the expense of parliamentary governance. Whatever history has to say about the decision, it is clear that it cannot be said to be consistent with Canada's constitutional principles -- until and unless we can be confident in the process as well as the rationale and substance of the decision itself.