The political community exploded with interest Monday when Ontario Premier Dalton McGuinty unexpectedly announced he is resigning.
In an email sent to Liberal supporters, McGuinty reiterated his request to the party president to hold a leadership conference at the earliest possible time, at which point he will resign. Additionally, he prorogued the legislature, using the rationale of allowing discussions on public-sector wage freezes to “occur in an atmosphere that is free of the heightened rancour of politics in the legislature.”
Some have speculated that, in reality, the prorogation was due to other factors, including the contempt motion brought against Energy Minister Chris Bentley for allegedly delaying the release of documents related to the cancellation of two gas-fired power plants. McGuinty had acknowledged the seriousness of the contempt motion, noting that Bentley is at risk of being the first cabinet minister to be found in contempt of the Ontario legislature.
I am not going to speculate on the reasons for McGuinty’s resignation or the prorogation of the legislature. Rather, I want to focus on the structure of our political system that allows prorogation to occur.
The Westminster parliamentary system is predicated on the notion of responsible government. This means that the executive, or cabinet, must maintain the confidence of the legislature or be required to resign. Proroguing the legislature basically shuts down all proceedings; MPPs will not be able to debate, pass laws, or vote at all. Thus, there is no way that MPPs will be able to hold the government to account.
The Queen’s representative in the province, the lieutenant governor, has the ultimate say on granting the prorogation. In theory, while he may deny the government’s decision to prorogue, in practice, this is unlikely to ever occur. The role of the monarch’s representative is largely ceremonial; any perception of the Crown attempting to influence the political process would surely result in backlash by politicians and the public. For this reason, the governor general and the lieutenants governor will essentially rubber-stamp requests that first ministers make to them.
Thus, we should not expect the Queen’s representative to act as a check and balance on the powers of the first ministers. Nicholas MacDonald and James Bowden, in Canadian Parliamentary Review, argue that it would be irresponsible for Canadians to return to a state of “heightened monarchic discretion,” as this would undermine democracy and responsible government. The authors conclude that it is unfathomable that a governor general could ever refuse a prime minister’s request for prorogation.
A very young child, when playing a game that is not going in his favour, may knock all the pieces off the board and refuse to continue playing. We would chastise the child for not playing fair and explain to him that this behaviour is unacceptable. Yet, our elected leaders participate in such behaviour and reap electoral rewards.
In Parliament, while the Conservatives only had a minority, the combined tri-party opposition approved an official review to limit the prime minister’s prorogation powers.
However, a Federal Court of Canada ruling in Conacher v. Canada (Prime Minister) states the following: The governor general possesses the power to dissolve Parliament under the Constitution Act, 1867, and there are no legal limits to this discretion. However, a political limitation exists as the governor general will only exercise power.
The court stated that Canada is ruled by a system of constitutional supremacy. The constitutional context allows the governor general to dissolve Parliament; any tampering with this discretion must be done via constitutional amendment with unanimous consent of all provinces and the federal government. Relating to the issue of prorogation, the court agreed that it had jurisdiction over Crown prerogatives; however, the issue was not justiciable, as no individual’s legal rights or legitimate expectations were violated.
A similar issue is raised when the government is defeated on a motion of confidence.
In Democratizing the Constitution: Reforming Responsible Government, the authors argue that in practice, the prime minister has been able to choose to resign or to dissolve Parliament.
There is a commonly held misperception in Canada that the party with the most seats gets to form the government. In reality, it is the party that has the confidence of a majority of the House that gets to do so. In New Zealand, if the prime minister resigns, the governor general should turn to the Opposition to see if they can form a government that commands confidence in the House. If not, the House would be dissolved and an election held. However, in Canada, the prime minister and the premiers have a choice of calling an election before taking this step. This is done for partisan advantage and results in needless elections being called.
These developments are not new. Leaders have been proroguing and needlessly calling elections since Confederation. It is time for the Canadian public to chastise those leaders that have violated the conventions of responsible government.