Academic

Lorne Sossin - "Was the Governor General's Decision to Prorogue Parliament Constitutional?"

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Lorne Sossin.

In light of the presentations, questions and comments on the panel, there are three broad constitutional principles imperiled by the recent decision by the Governor General to prorogue Parliament and its fallout:

First, the principle of transparency and accountability is under siege. The Gov. Gen. heard a request to prorogue Parliament in camera. We have no idea what was said, what factors she considered (Bob Rae wondered, for example, whether she attached any weight to the signed letter from the opposition parties indicating they had lost confidence in the Conservative Government), or the reasons underlying her decision to grant the Prime Minister's request. In the absence of any explanation of the decision, commentators have read much meaning into the tea leaves available - for example, Peter Russell took the length of the meeting (over two hours) as evidence that the Gov. Gen. recognized she had the discretion to refuse the Prime Minister's request. While experts may be able to connect the dots of what we know, It seems completely out of step with Canada's constitutional development to have crucial public decisions which go to the integrity of democratic legitimacy in Canada, rendered behind closed doors with no reasons whatsoever.

Second, the principle of principled pragmatism which has seen Canada through so many political crises is in jeopardy. Canadian constitutionalism has been characterized by the ability to find practical solutions to constitutional dilemmas rooted in but not ossified by principle. Rather than carve a creative middle-ground position, the Gov. Gen. appears simply to have allowed the Prime Minister to prorogue Parliament in order to evade a vote of no-confidence. While this may serve short-term strategic goals, it seems likely to further undermine trust both between the parties and between the public and the parties. To suspend Parliament at a time of political and economic crisis struck a number of the speakers as neither principled nor pragmatic.

Third, the current crisis risks eroding the principle of accommodation, and respect for minority rights/perspectives. This principle is the foundation for Canadian federalism and more recently the emergence of multiculturalism. The debate and the reaction to the Gov. Gen's decision has pitted the West against the East, Quebec against other parts of Canada, etc. The divisiveness of the political and constitutional debate has provoked anxiety and uncertainty, and made a consensus on how best to confront the gathering economic storm even more elusive.

These three constitutional principles have carried us to this point and allowed our evolution into a modern, constitutional democracy - I believe we will need them even more in the future.

Full post as published by University of Toronto Law School Faculty Blog on December 09, 2008 (boomark / email).