Legal Research

Riches for constitutional aficionados

By Patricia Hughes

After the excitement of the American primaries and election, we political addicts thought we were going to have to go through withdrawal (or enjoy a respite - a “reassurance” that we really weren’t addicted). But just as we needed a fix, our own constitutional “crisis” comes along. How I wish I were still teaching constitutional law (or Canadian politics, but that was long, long ago in another galaxy). I would tell my students that I put “crisis” in quotation marks for a reason and then I would seize the opportunity to tell them that, recent developments notwithstanding, we still operate under a parliamentary system…not a crisis at all, but the system in full operation.

As a friend of mine said, in other countries they have coups, while we have wars of words and the governing party talking about going to go door to door to find signatories for a petition. The Canadian way is to fall back on a constitutional nicety that flows from one of the basic principles or conventions of the parliamentary system: for a party to govern it must have the confidence of the House. Granted that the usual way to address lack of confidence is through an election, even that often results, as it did last time, in a rather lukewarm vote of confidence from “the people”. (Mr. Harper’s insistence that “the people” must decide reflects his apparent wish to be President and not Prime Minister and tends to overlook that more people voted against his party than for it.) Rare though it may be, however, the Governor General’s calling on another party to see if it can acquire and maintain the confidence of the House is a legitimate constitutional method of permitting Parliament to continue for a reasonable period of time (and of course it can work because there are not too many parties to complicate things, although see my comment on the Bloc below).

Granted that the coalition’s approach comes with some risks (what is the likelihood that the Bloc will not push its luck?), but whatever happens in the end, and regardless of whether the coalition loses its nerve, given Mr. Harper’s unilateral delay of the confidence vote (contrary to his readiness to hold “confidence” votes in the last Parliament, taking advantage of the Liberals’ reluctance to go to the polls), and whether the Liberal leadership candidates can indeed work together, the last week or so has been a wonderful lesson — and reminder — about our system of government and its constitutional cleverness.

Oh, yes, about that prorogation thing ….and about that economic crisis we’re supposed to be in that some people think still needs an immediate yet considered response.

Full post as published by Slaw.ca on December 02, 2008 (boomark / email).