The Supreme Court and Constitutional Change: Veto Player or Forcing Function?

The Supreme Court’s ruling in Comeau was disappointing. When offered the chance to bring some balance between section 121 and provincial powers, the Court swung hard toward the latter. In a typically Canadian fashion, the interests of governments took precedence, and will continue to take precedence, over the interests of consumers. We shouldn’t be too surprised by this. The people are absent from the Canadian constitution. We are a country of Crowns and legislatures, regions and minorities, not a state with a sovereign, unified people. Ultimately, Comeau reflects this reality.

The interpretive problems with the Comeau ruling have been addressed by legal scholars (here and here) and a political scientist who specializes in the Court and the Constitution. I’m not qualified to comment on their analyses, but they’re fairly convincing to this lay reader.

What I can comment on is the Court’s approach to institutional change. As Craig Forcese noted yesterday, it’s hard not to notice that the SCC is encasing Canadian institutions in amber. The Court is becoming a significant status quo player when it comes to institutional change. (Dennis Baker and Mark Jarvis have a great book chapter on this issue in Macfarlane’s book.) While we might hope that the Constitution could be a living tree when it comes to how we govern ourselves, the Court is basically telling us that we have to accept that it’s a dead stump.

What’s the Court trying to accomplish here?

One answer is that the SCC has an inherent status quo inclination. I could accept this if the Court demonstrated a similar inclination when applying the Charter.

Another possibility is that the Court thinks that institutional change should come from politicians, not the judiciary. If that were the case, one would expect the Court to be more accepting of incremental changes forwarded by governments and legislatures. I don’t think we’ve seen much of that.

A third possibility is that the Court is subtly telling us that we can’t avoid constitutional negotiations forever –that these rulings are meant to serve as a forcing function. Seen in this way, the SCC is saying that it won’t make the changes that should be properly negotiated between governments. Paradoxically, the Court may be using its power as a status quo player to force Ottawa and the provinces to accept that they will need to reopen the constitution if they want to address Canada’s constitutional deficiencies.

If this is what the SCC is doing, then there’s something valuable about their approach. Allowing our institutions to drift along isn’t setting Canada up for success over the long-term. Indeed, one of the biggest threats to Canadian prosperity may be the inability/unwillingness to update our institutions to meet contemporary problems. Otherwise, as Fukuyama warns us, we face the prospect of political decay and its rather serious consequences.

I’m probably wrong about what the SCC is doing. Maybe the Court is simply being craven or pragmatic. But I hold out some hope that the justices aren’t simply being veto players for the sake of being veto players.

 

The United Kingdom’s weakened war prerogative convention

So, I was wrong: Prime Minister May didn’t feel bound to hold a parliamentary vote before ordering air strikes against the Syrian regime.

I expected that, in light of the August 2013 precedent when the UK Commons voted against air strikes against the Syrian regime (see my Parliamentary Affairs article), the scope of the British convention on consulting the lower house would have included these latest air strikes.

That’s evidently not the case.

The contrast between Cameron’s failed August 2013 vote and May’s decision not to hold a vote is quite striking. Cameron proceeded with significant caution, and he backed down immediately when the Commons voted against his motion. May is accepting notable political risk by circumventing the Commons, but there’s also a good chance she won’t face any consequences.

Come Monday, May will likely argue that she’s still acting within the parameters of the convention that gelled from 2003 to 2013-2014. There’s very little the opposition can do to punish her if they disagree, so her interpretation will stand.

(Update: May argues that her actions fell within the convention, given that the operation consisted of an emergency.)

But that doesn’t mean the convention has been left unchanged.

Looking back at Cameron’s statements from 2014, this one stands out: “it is important that a Prime Minister and a Government reserve the right to act swiftly without consulting the Commons in advance in some specific circumstances—for instance, if we had to prevent an immediate humanitarian catastrophe or, indeed, secure a really important, unique British interest.”

In explaining her decision, May echoes the exceptions Cameron highlighted:

“The speed with which we are acting is essential in co-operating with our partners to alleviate further humanitarian suffering”

“I have done so because I judge this action to be in Britain’s national interest.”

May is framing her action as a response to chemical weapon use, a humanitarian catastrophe, a British national interest, and an emergency. In that sense, she might be said to be acting within the narrow limits that Cameron outlined in 2014.

Yes, the convention will still apply to the deployment of ground forces on combat operations or long-term air/sea combat missions. But its hard to see how future governments could not use this precedent to avoid a vote on limited air strikes or strikes from the sea.

Canadian Government: A Pedantic Style Guide

Governments don’t have mandates, they hold confidence.

Governments aren’t directly elected in Canada, they’re formed or continue governing based on their ability to hold the confidence of the elected house of the legislature.

 

Governments don’t have terms, they have parliaments/legislatures and length of ministries.

The life of governments is determined by their ability to hold or regain the confidence of the elected house of the legislature. A government can thus span multiple parliaments and a single parliament can have more than one government. First ministers can also dissolve the legislature pretty much at will. Equally important, governments only end when the first minister resigns or is dismissed by the Crown. So, an election doesn’t begin a governmental ‘term’, nor does a dissolution of the legislature end it.

When speaking of how long a first minister led the government, we should speak about the duration of their ministry, or if they’ve headed more than one government, ministries.

 

Prime Ministers and Ministers don’t sit (i.e. sitting Prime Minister), they serve.

Ministers are servants of the Crown. This is a capacity distinct from the seat they hold in the legislature.

 

There are no interim Prime Ministers, only interim party leaders.

Interim implies that someone who is temporarily holding an elected position and that they themselves were not elected to that position. They’re holding it in anticipation of an election. Prime Ministers are appointed.

 

There is no Prime Minister-elect or Premier-elect. The technical term is Prime Minister-designate or Premier-designate

Since first ministers are not elected, but appointed by the Crown, we use designate to mean that the Crown has commissioned them to form a government but that they have not yet been sworn to office (h/t Richard Berthelsen).

 

Ministers are accountable to Parliament for their responsibilities, they are not responsible to Parliament.

Ministers are responsible for the exercise of executive powers and are accountable to Parliament for decisions and actions that fall under their responsibilities.

 

The Governor General is not the head of state, the Queen is the head of state (if you absolutely must use that term.)

The Queen personifies the state in law. She is the legal personality of Canada. In that sense, she holds the highest office of the Canadian state, what we would call the head of state, or more simply ‘the Sovereign’. As the Queen’s representative, the Governor General is always one rank below the Queen and thus not the head of state.

 

Parliament is not synonymous with the House of Commons. 

Parliament is comprised of the House of Commons, the Senate, and the Queen. The House of Commons, the elected lower house, is one part of Parliament.

 

Supreme Court justices are appointed, not nominated. (h/t Emmett Macfarlane)

Supreme Court justices are appointed by the Governor General on the advice of the Prime Minister. While they may go before a committee of parliamentarians before their appointment is formalized, this is not akin to the legislative nomination process where the committee can exercise a formal veto on the Prime Minister’s choice.

 

Parliament does not ratify treaties. 

The power to sign and ratify treaties belongs with the executive. The House of Commons may be asked to express its support for a treaty through a vote and Parliament is often required to legislate to give effect to a treaty. But it is the executive that ratifies the treaty.

 

Refer to parliamentarians as parliamentarians or legislators, rather than lawmakers. 

Crafting legislation is only small part of what parliamentarians do. And for the most part, parliamentarians have limited influence over government bills. Private member’s bills, moreover, account for small portion of Parliament’s legislative agenda. Legislation is crafted by the executive, with parliamentarians scrutinizing bill tabled by the government. Describing parliamentarians as lawmakers distort who is crafting most laws.

 

Should we refer to a government, administration, or ministry?

Technically, first ministers lead Her Majesty’s government. In the United Kingdom, in fact, it’s not uncommon to refer to the executive as Her Majesty’s Government. The vast majority of the executive, moreover, is comprised of public servants who are non-partisan employees of the Crown. During the Harper years, this led to consternation about the term ‘the Harper government’.

Since the first minister heads the government as the Crown’s highest ranking servant, it is acceptable to say ‘Harper government’ or ‘Trudeau government’. While public servants are non-partisan, they are expected to loyally implement the policies and directives of the Crown’s ministers.

What about administration? During the colonial era, one could speak about the ‘local administration’ to differentiate colonial officials from the government in London. Today, administration is more likely used because that’s how we refer to American presidencies. (Also, in the United States, the government does not refer to the executive alone, but to Congress and the courts, too.) Accordingly, administration should be avoided.

Another reason to avoid administration is that there is a better term: ministry. A ministry is the group of ministers led by the first minister that advises the Crown. If one is looking to avoid using government, then ministry is the correct term, and preferable to administration.

 

Will the Commons vote on Mali?

Canada is sending helicopters to assist the UN mission in Mali.

After the Trudeau government announced the mission, members of the Conservative opposition demanded that the operation be put to a vote in the House of Commons.

I’ve written about why holding military deployment votes is a bad idea here. I’ve also shown that, in Canada, the practice of holding these votes largely benefits the executive. And, in an article comparing Canada and Germany, Patrick Mello and I have shown that the votes do lead to less debate and deliberation in Parliament, particularly in Canada.

Leaving all that aside, though, there is the question of whether holding a vote on Mali would be in keeping with the practice followed by the Harper government.

Based on the Harper record, and the Trudeau government’s record thus far, it would not be breaking with the practice since 2006 to deploy the armed forces to Mali without a vote. From 2006 on, the Canadian practice has been to hold vote on combat missions. Although the Canadian helicopters that will be deployed to Mali will include armed Griffons, this does not seem to meet the criteria of a combat mission. Indeed, this helicopter deployment is far less likely to involve combat than the deployment of Special Operations forces to Iraq in August 2014 on advisory and assistance mission, which was not voted on by the Commons. (For those with short memories: the Harper government deployed the SOF in August 2014, then held a vote when fighter aircraft where deployed to the conflict in a role that explicitly involved a combat role.)

So, if the issue is respect the practice that has been followed since 2006, the deployment of helicopters to the UN mission in Mali shouldn’t require a vote.

 

Canada’s constitutional cowardice

I was pleased to see this Konrad Yakabuski op-ed in the Globe today.

As readers of this blog and most of my op-eds over the past five years know (see here, here, and here, among others), Canada’s approach to royal succession has been an obsession of mine.

My underlying concern with the royal succession case are well-articulated by Yakabuski: Canada’s handling of this question betrays a willingness avoid the constitution at all costs, even if that means breaking with past precedent, fudging the distinction between the Crown in right of Canada and the Crown in right of the United Kingdom, and sowing the seeds of future controversy around the pre-eminent institution of the Canadian state.

As someone who studies institutions and how they change, though, I realize that Canada’s handling of the monarchy has always been political and shaped by institutional constraints.

From the end of the First World War to 1978, Liberal governments used the Crown to advance a nationalist agenda. The Crown was progressively Canadianized and cast as a separate institution from the British monarchy. Like the flag and other national symbols, it was important to forge a distinctly Canadian Crown to advance the idea of an independent Canada.

After the constitution was patriated in 1982, however, there was no more need to use the Crown to push Canadian independence. Canada’s standing as a wholly sovereign state was provided by the Canada Act, 1982. That project was now complete and the Crown was no longer needed as a vanguard of Canadian sovereignty.

Instead, the Crown became something to be diluted or downplayed. The Constitution Act, 1982 included a Charter of Rights and Freedom and constitutional amending formula that threatened to make the Crown a source of misery for the federal government. Charter challenges involving the Queen were one headache (see the recent challenges to the citizenship oath), but the bigger problem has been that changes to the monarchy require the unanimous consent of the provinces. In the royal succession case, the Canadian government and federal Parliament decided that it was better to deny that Canada has any laws for determining its head of state rather than risk having to ask the provinces to approve change to that law. (For those who deny that Canada ever thought it had laws of royal succession, what law of succession was Bill C-60 of 1978 referring to when it said the Queen’s sovereignty would be passed down according to law?)

Simply put, the federal government will twist and contort the meaning of the Crown in whatever way necessary to avoid a conflict between monarchy and the Charter, or the prospect of having to engage in constitutional negotiations with the provinces.

The courts have gone along with this strategy since 1982 and I don’t expect them to stop anytime soon. Judges aren’t politicians, but they’re politically aware. I doubt any of them will force Canada into a unanimous constitutional amendment over something as inconsequential as ending male primogeniture in the laws of royal succession.

Still, as Yakabuski notes, there’s something pathetic about our inability to confront our constitution. If we can’t even debate who should be our national figurehead, how are we going to handle larger constitutional problems down the road?

 

 

Section 44 and royal succession in Canada

What was I getting at with this tweet yesterday?

“N.B. According to the federal government’s interpretation of royal succession in Canada, we could arguably make Harry the King of Canada with a simple parliamentary statute or a section 44 (ie unilateral) constitutional amendment.”

My understanding of the federal government’s logic when it comes to royal succession in Canada is as follows:

a) Matters of royal succession are determined by British law; there is no Canadian law of royal succession.

b) Instead of Canadian laws of royal succession, we have a ‘rule of recognition’ or ‘principle of symmetry’ that simply states that whoever is the monarch in the UK is the monarch of Canada.

c) This means that changes to the law of succession do not engage the ‘office of the Queen’ mentioned in paragraph 41(a) of the Constitution Act, 1982; the ‘office of the Queen’ only deals with the powers of the office, and Canada’s status as a monarchy, rather than the rules that determine who holds the office of Sovereign.

d) The ‘rule of recognition’ means that Canada does not need to change any laws or amend the Canadian constitution when the British laws of royal succession are altered.

e) When the UK makes changes to their laws of royal succession, all Canada needs to do is express its assent, as per the preamble to the Statute of Westminster, 1931.

f) We know that this ‘rule of recognition’ exists by virtue of either the preamble to the Constitution Act, 1867, which states that Canada was confederated under the “Crown of the United Kingdom of Great Britain and Ireland,” or thanks to section 9 of that same Act, which provides that “The Executive Government and Authority of and over Canada is hereby declared to continue to be vested in the Queen,”

g) Proponents of the ‘rule of recognition’ also point to section 2 of the Constitution Act, 1867 that used to state: “The Provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.” (The problem is that this section was repealed in 1893, and its existence calls into question the idea that the preamble and section 9 provide a ‘rule of recognition’, i.e. why would the preamble and section 9 provide a rule that section 2 provided? If anything, section 2 demonstrates that the preamble and section 9 were never meant to provide such a rule, but I digress.)

h) So, my understanding is that the ‘rule of recognition’ is tied to the preamble and/or section 9 of the Constitution Act, 1867, with the repealed section 2 telling us that rule says. I may be wrong, but I haven’t seen an argument linking the ‘rule of recognition’ to the ‘office of the Queen’ precisely because the office is said to not include the rules that determine who holds the office.

i) This then raises the question: what would Canada need to do to end the ‘rule of recognition’ and craft its own laws of royal succession?

j) If we accept that the ‘office of the Queen’ does not deal with the rules that determine who holds the office, then we would not need to follow the unanimous amending formula identified in section 41.

k) If the preamble to the Constitution Act, 1867 is what protects the ‘rule of recognition’, then perhaps the general amending formula would be sufficient.

l) But if the rule is actually provided by section 9 alone, then one could make the case that the amending formula found in section 44, which allows Parliament to act alone, could be sufficient. Specifically, since section 9 deals with the Queen as the executive power and section 44 allows for amendments to the federal executive power, it might follow that section 44 would suffice.

m) Indeed, even proponents of the ‘rule of recognition’ have suggested that, if Canada does need an actual constitutional amendment to give effect to the changes enacted by the UK in 2013, then a section 44 amendment would be sufficient, since Parliament would merely be keeping Canada aligned with the UK laws, as per the convention of the Statute of Westminster.

n) We could also think of hypothetical scenarios that would favour a section 44 approach. If the UK suddenly became a republic, how would Canada ensure the continuity of its system of government? To avoid having to completely overhaul the monarchy under section 41, the case would probably be made that section 44 would allow Parliament to establish Canadian laws of royal succession in the absence of a British monarch to mirror as our own.

o) If we accept all this, though, we could also then make the case that a section 44 amendment could provide new Canadian laws of royal succession right now, hence the hypothetical ability for Parliament to make Harry the King of Canada without involving the provinces.

p) As for a regular parliamentary statute, you could further argue that nothing prevents Parliament from legislating for royal succession today, save for the convention outlined in the Statute of Westminster. That convention, however, isn’t a law. Moreover, the convention has been disregarded by Australia and New Zealand, so its continued existence is doubtful. Specifically, Australia and New Zealand didn’t assent to anything to change their laws of succession; they simply altered their relevant laws.

q) In fact, as long as Parliament passed laws of royal succession that accorded with the ‘rule of recognition’ they wouldn’t be unconstitutional. Parliament could also pass a law of royal succession that broke from the ‘rule of recognition’, but it would only last until a court struck it down as being unconstitutional.

r) A section 44 amendment is the only viable option at this stage, though, given that the lower courts have ruled that the ‘rule of recognition’ is part of the Constitution of Canada.

So that’s the point I was making with my tongue in cheek tweet.

What’s the counterargument?

One could argue that the ‘rule of recognition’ is protected by the ‘office of the Queen’, and that any move away from the ‘principle of symmetry’ would require a unanimous constitutional amendment.

To get there, however, one needs to admit that the ‘office of the Queen’ does deal with the rules that determine who holds the office. Frankly, this should be obvious to anyone who looks seriously at the issue. And I suspect defenders of the ‘rule of recognition’ will admit as much privately.

The ‘office of the Queen’ came about in reaction to Bill C-60, the legislation the P.E. Trudeau government introduced in 1978 to amend the constitution. Section 30 of Bill C-60 provided that “The sovereign head of Canada, Her Majesty the Queen, who shall be styled the Queen of Canada and who sovereignty as such shall pass to heirs and successors in accordance with law.” The reference to succession according to law must have meant Canadian law, not British law, given the aim of Bill C-60 was to provide a wholly Canadian monarch and constitution. The laws in question were likely those that would have previously applied to Canada by paramount force, such as the Act of Settlement and the Royal Marriages Act, and the His Majesty’s Abdication Act, 1936 which was explicitly extended into Canadian law by the British Parliament in December 1936. Under section 30 of Bill C-60, Canada would have had the authority to alter those laws to set the rules of succession for the Queen of Canada, just as Australia and New Zealand do for the Queen of Australia and Queen of New Zealand today.

Bill C-60 was opposed by those who saw it as potentially severing the link between the British and Canadian Crown. Their counterproposal was the language of the ‘office of the Queen’ that ended up in the Constitution Act, 1982. A key motivation for introducing the ‘office of the Queen’ was to ensure that Parliament couldn’t change the monarchy, including the rules of royal succession, without provincial consent.

Up until 2013, furthermore, authorities such as Peter Hogg and advocates such as the Monarchist League took it for granted that the ‘office of the Queen’ dealt with the identification of who held the office. They only changed their tune when they had to defended the federal government’s argument that the ‘office of the Queen’ did not touch on the identity of the office-holder.

Now that the ‘rule of recognition’ has been held up by courts in Ontario and Quebec, I remain puzzled as to why defenders of this ‘rule’ don’t simply say that it’s shielded by the ‘office of the Queen’.

The only reason I can come up with is that they want to protect Parliament’s ability to alter the ‘rule of recognition’ via section 44. Indeed, the courts may force them to do just that as the succession case makes its way through the Quebec Court of Appeal and perhaps the Supreme Court of Canada.

Put differently, if the courts do find that a constitutional amendment is needed to give effect to the changes in the laws of royal succession undertaken by the UK in 2013, the federal government will surely argue that it can use section 44. This precisely the power I was suggesting Parliament has with my tweet.