On Wednesday, purported “civic literacy” group Your Canada, Your Constitution released the results of a new poll, this time on restricting the powers of prime ministers and premiers through codified rules that could be enforce.
The question was as follows:
Some rules that are part of Canada’s Constitution, that are called “constitutional conventions”, are not written down, and so experts disagree what these rules actually are and whether the rules can be enforced. Experts do agree that the unwritten convention rules cover decisions such as: when the Prime Minister and premiers can open and close parliament; what measures can be included in bills such as budgets; whether a government has lost a vote that should cause an election; whether an election should be called just because a Prime Minister or premier wants an election, and; which political party, or parties, will be the government after an election.
In most countries in the world, including Britain, Australia and New Zealand, these rules are written down so the powers of their politicians are clearly defined and restricted, and so the rules can be enforced.
Do you think Canada’s constitutional convention rules should be written down so that the powers of the Prime Minister and provincial premiers are clearly defined and restricted, and so the rules can be enforced?
Respondents were given the option to strongly agree/agree/disagree/strongly disagree/don’t know, and the question received an 84 percent agreement. Sounds great, right?
Well, not really. This isn’t the first time that YCYC has put out a torqued poll based on false or misleading information. One most notable example was a poll that asked if Canadians wanted to sever ties to the “British Crown” – never mind that we’ve been governed by the Canadian Crown since the Statute of Westminster in 1931, which has evolved into a distinct legal entity with a line of succession that mirrors that of Britain’s. For Canadians, Elizabeth II is the Queen of Canada, with distinctive titles, honours, and insignia – not that YCYC, with an obvious republican agenda, wants you to know this.
In the case of this latest poll, the question operates on a number of false premises. For starters, it says that these rules aren’t written down as they are in Britain, Australia and New Zealand. This is factually untrue – there has been a Manual of Official Procedure of the Government of Canada since 1968, and while it may not be currently available on the PCO website, it is not too difficult to find (PDF here, with thanks to James WJ Bowden). It also ignores that there are differences in political culture between Canada, Britain and New Zealand. For example, in the UK, they created their cabinet manual in the age of coalition government because they avoid involving the Queen at all costs. In New Zealand, the Crown plays a smaller role in their constitution than in other Westminster democracies. In Canada, by contrast, there has been space created for the Governor General to exercise judgement calls (and no, this does not mean that Governors General have magical powers when it comes to discretionary authority, as some people have been asserting recent in regards to the First Nations’ demands that he attend a meeting with the PM and Chiefs).
As for YCYC’s point about guidelines for which measures can be included in budget bills, that is a matter for the Standing Orders of the House, and not a cabinet manual. And guess who gets to determine what constitutes the Standing Orders? MPs themselves. If they feel the need to put limits around what goes into a budget bill, or to draw limits around omnibus legislation in general, they can do that at any time.
With these facts established, the bigger issue around YCYC’s poll question has to do with the question of their motivation for wanting these prerogatives and powers to be codified, and that is to do with enforcement. Enforcement has long been a hobbyhorse of YCYC spokesperson Duff Conacher in his former role as head of Democracy Watch, and what that means is that he wants prerogative powers and constitutional conventions to be justiciable. But therein lies the problem – taking the Prime Minister and/or the Governor General to court is antithetical to the basic principles of a Westminster democracy unless they violate the constitution and the norms of administrative law. Not only that, but constitutional conventions can’t legally be enforced by the courts because they’re political rules, not judicial ones.
The fundamental tenet of our system of government is that the continued operation of the government depends on maintaining the confidence of the chamber. Government cannot spend money or move its policy agenda forward unless the House agrees, and yes, that is a much easier task in a majority situation than in a minority. The House provides accountability through its adversarial system, and it gives elected MPs the power to curtail the powers and activities of a sitting PM by controlling supply. As well, a Governor General is capable of making judgement calls with regards to untenable requests of a Prime Minister (such as calling an election immediately after one has been decided), and ultimately, the voting public gets to hold both MPs and the sitting government to account at the ballot box.
It therefore begs the question why a group like YCYC – whose mandate purports to advance civic literacy in the country – is looking to do an end-run around democracy by encouraging the development of mechanisms that would eventually drag legitimate political decisions before the courts. One suspects that the motive is about trying to remove politics from the system of governance by trying to involve the ostensibly neutral and independent judiciary into political roles and to make political determinations. It also ignores the fact that Parliament itself is in fact the highest court in the land – it is the grand inquest of the nation. And it is a slap in the face to the biggest principles of democracy – that the electorate gets to decide the fate of a government, and not the courts.
The fact that YCYC are continually publishing polls based on false and misleading information should raise flags – and the media should be more vigilant in calling them on their false premises rather than giving them credibility or oxygen in the news cycle.