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Constitutional dictatorship in Canada?

By Jack M. Balkin

A respondent to an earlier posting today writes, "if you have been following political events in Canada, you might note that the parliamentary system seems to have some glitches of its own." Yes, indeed. The New York Times story on the subject is titled "Canadian Leader Shuts Parliament" and begins "Canada's parliamentary opposition reacted with outrage on Thursday after Prime Minister Stephen Harper shut down the legislature until Jan. 26, seeking to forestall a no-confidence vote that he was sure to lose and, possibly, provoking a constitutional crisis." Harper, with the approval of the Governor General, who is, of course, appointed by her Majesty Queen Elizabeth II, "prorogued" the parliament. Explains the Times:

Technically, what Mr. Harper did was to ?prorogue? Parliament, a move that stops all actions on bills and the body?s other business, and thus goes well beyond an adjournment (which was not available to Mr. Harper in any event, as it requires parliamentary approval). It is not unprecedented ? prorogation is used occasionally to introduce a new legislative agenda ? but this is the first time any Parliament members or constitutional scholars here could recall the maneuver being used in the midst of a political crisis and over the objections of Parliament.

I have no idea whether Harper's action is a violation of the Canadian constitution. The story quotes Nelson Wiseman, a University of Toronto political scientist: ?This really has been a blow to parliamentary democracy in Canada. It has lowered the status of the elected Parliament and raised the status of the unelected prime minister.? Well, yes, but we have seen the diminishment of democracy in the United States through a series of presidential acts (by presidents of both parties, incidentally, though surely Mr. Bush has taken it to new depths) that most lawyers would describe as "constitutional." So the question, as far as I'm concerned, is whether our friends to the North are in the process of discovering that their constitution, as is the case with ours, contains the seeds of at least a mild form of "constitutional dictatorship" for any prime minister bold enough to exert full constitutional powers (with the acquiescence, of course, of the Queen's representative, who, I presume, is bound, in the modern world, to rubberstamp whatever the Prime Minister asks for, assuming that it is, as a technical matter, "legal"). I would certainly welcome responses from anyone who knows more about Canadian constitutional law than I do.

Full post as published by Balkinization on December 06, 2008 (boomark / email).