BC election aftermath: Politics and the constitution

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Politically engaged citizens preparing to enforce the norms of responsible government

One respect in which Canada is unlike most other democracies is that there is no document or set of documents that comprises the entire constitution; in other words, we have what is sometimes (misleadingly) called an unwritten constitution, meaning that some of the most important features of our constitution are defined by custom and convention rather than the written word.

For example, if you want to know all about the office of the President of the United States, you can just whip out your pocket constitution and it’s all right there: term of office, method of selection, executive powers, and so forth. But if you want to know all about the office of the Prime Minister of Canada, you may be disappointed to find that the Constitution Acts contain only a single mention of the position, and the relevant section is concerned only with the PM’s role in constitutional conferences. The closest the written part of the constitution comes to actually defining the position is the bit at the beginning where it says that Canada will have a constitution “similar in principle to that of the United Kingdom.” But because the UK’s constitution is even less thoroughly codified than Canada’s, that doesn’t clarify a whole lot by itself either!

Fortunately, there is a broad consensus among scholars about much of the content of the unwritten rules that comprise so much of our constitution. Reading a chapter or two from an introductory political science textbook should give you the fundamentals. How Canadians Govern Themselves by Eugene Forsey, which the Library of Parliament has made available for free as an e-book, is also an accurate, accessible introduction or refresher.

It’s very important for these conventions to be widely understood by Canadians, for two reasons. First, conventions are non-justiciable, meaning that they cannot be enforced by the courts. The sanctions and remedies for violation of a convention are all political, not legal. In other words, enforcement of conventions is ultimately up to us. And second, it is only by convention that our constitution is democratic at all. This long quote from the Patriation Reference lays it all out:

…[M]any Canadians would perhaps be surprised to learn that important parts of the consti­tution of Canada, with which they are the most familiar because they are directly involved when they exercise their right to vote at federal and provincial elections, are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution.

It is also a constitutional requirement that the person who is appointed prime minister or premier by the Crown and who is the effective head of the government should have the support of the elected branch of the legislature; in practice this means in most cases the leader of the political party which has won a majority of seats at a general election. Other ministers are appointed by the Crown on the advice of the prime minister or premier when he forms or reshuffles his cabinet. Ministers must continuously have the confidence of the elected branch of the legislature, individually and collec­tively. Should they lose it, they must either resign or ask the Crown for a dissolution of the legisla­ture and the holding of a general election. Most of the powers of the Crown under the prerogative are exercised only upon the advice of the prime minister of the cabinet which means that they are effectively exercised by the latter, together with the innumerable statutory powers delegated to the Crown in council.

Yet none of these essential rules of the constitu­tion can be said to be a law of the constitution.

[…]

As a matter of law, the Queen, or the Governor General or the Lieutenant Governor could refuse assent to every bill passed by both Houses of Parliament or by a Legislative Assembly as the case may be. But by convention they cannot of their own motion refuse to assent to any such bill on any ground, for instance because they disapprove of the policy of the bill. We have here a conflict between a legal rule which creates a com­plete discretion and a conventional rule which completely neutralizes it. But conventions, like laws, are sometimes violated. And if this particular convention were violated and assent were improp­erly withheld, the courts would be bound to enforce the law, not the convention. They would refuse to recognize the validity of a vetoed bill. This is what happened in Gallant v. The King a case in keeping with the classic case of Stockdale v. Hansard where the English Court of Queen’s Bench held that only the Queen and both Houses of Parliament could make or unmake laws. The Lieutenant Governor who had withheld assent in Gallant apparently did so towards the end of’ his term of office. Had it been otherwise, it is not inconceivable that his withholding of assent might have produced a political crisis leading to his removal from office which shows that if the remedy for a breach of a convention does not lie with the courts, still the breach is not necessarily without a remedy. The remedy lies with some other institutions of government; furthermore it is not a formal remedy and it may be administered with less certainty or regularity than it would be by a court.

Another example of the conflict between law and convention is provided by a fundamental con­vention already stated above: if after a general election where the opposition obtained the majori­ty at the polls the government refused to resign and clung to office, it would thereby commit a fundamental breach of convention, one so serious indeed that it could be regarded as tantamount to a coup d’état. The remedy in this case would lie with the Governor General or the Lieutenant Gov­ernor as the case might be who would be justified in dismissing the ministry and in calling on the opposition to form the government. But should the Crown be slow in taking this course, there is nothing the courts could do about it except at the risk of creating a state of legal discontinuity, that is, a form of revolution. An order or a regulation passed by a minister under statutory authority and otherwise valid could not be invalidated on the ground that, by convention, the minister ought no longer be a minister. A writ of quo warranto aimed at ministers, assuming that quo warranto lies against a minister of the Crown, which is very doubtful, would be of no avail to remove them from office. Required to say by what warrant they occupy their ministerial office, they would answer that they occupy it by the pleasure of the Crown under a commission issued by the Crown and this answer would be a complete one at law, for at law the government is in office by the pleasure of the Crown although by convention it is there by the will of the people.

[…]

It is because the sanctions of convention rest with institutions of government other than courts, such as the Governor General or the Lieutenant Governor, or the Houses of Parliament, or with public opinion and ultimately, with the electorate, that it is generally said that they are political.

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One thought on “BC election aftermath: Politics and the constitution

  1. Pingback: Why the lieutenant governor cannot immediately call a new election | Popcorn Machine

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