NSICOP and Parliamentary Privilege

Ontario’s Superior Court of Justice has found that section 12 of the National Security and Intelligence Committee of Parliamentarians Act is ultra vires. Section 12 seeks to prevent NSICOP members from using their parliamentary privilege of free speech to disclose information they learn as part of their work on NSICOP. Since the parliamentary privilege of free speech would normally protect proceedings in Parliament from the courts, section 12 was meant to ensure that NSICOP members would still be bound by the Security of Information Act during parliamentary proceedings and subject to prosecution if they violated the provisions of said act as part of parliamentary proceedings. Professor Ryan Alford challenged the constitutionality of section 12, arguing that an ordinary statute could not restrict parliamentary privilege in this manner. Fregeau J. accepted Alford’s argument, finding that section 12 of the NSICOP Act was beyond Parliament’s constitutional competence.

I was skeptical that Alford’s argument would carry the day. The houses of Parliament can regulate their own affairs and delimit the privileges of their members. While I can see why doing so through a regular statute is questionable, and I share Alford’s underlying conviction that section 12 undermines Parliament’s constitutional responsibility to hold the executive to account, I’m not yet convinced that Parliament can’t limit the privileges of individual members in this way. I suspect that the federal government will appeal this case, so it’ll be interesting to see where it ultimately lands.

If the Superior Court’s reasoning is upheld, however, it should have an important impact on NSICOP and how we understand the separation of powers in Canada.

Section 12 of the NSICOP Act goes to the core of why NSICOP is what it is. NSICOP is not a committee of parliament. It’s an executive body made up of parliamentarians who are appointed as NSICOP members by the Governor-in-Council. NSICOP was apparently established as an executive body rather than a parliamentary committee to build trust between the Committee and the intelligence community. The idea here was that the intelligence committee had to get used to being overseen by parliamentarians and needed assurance that this Committee would not leak or misuse classified information it was given. Section 12 played a critical role in this construct, since it was meant to ensure that NSICOP members could not use their parliamentary privilege to disclose classified information contrary to the Security of Information Act.

If section 12 is ultra vires, the logic of having NSICOP as an executive body to limit what members can say in Parliament no longer holds. Simply put, NSICOP members have regained their privilege to disclose classified information during parliamentary proceedings without the being prosecuted under the Security of Information Act. The argument that NSICOP has to be an executive body to prevent this from happening may now be null and void. While there may be other reasons to keep NSICOP as an executive body, there are also a number of reasons why it should be a statutory committee of Parliament instead. Assuming that section 12 is ultra vires, the arguments that NSICOP must be an executive body to protect classified information and appease the fears of the intelligence community have been dealt a serious blow.

Given all the other reasons why Parliament should have a veritable national security committee, the erasure of section 12 should prompt the government to remake NSICOP as a parliamentary body.

In terms of the separation of powers, Fegeau J’s judgment reinforces the idea that the branches of the state have inherent constitutional powers. He makes a compelling case that parliamentary privilege is an inherent part of the Canadian constitution, given section 18 of the Constitution Act 1867 and the legislature’s constitutional functions and the requirement for each branch of the state to respect the sphere and dignity of the others.

If this is the case, it raises the question whether the executive has inherent constitution powers by virtue of part III of the Constitution Act 1867, notably via sections 9 and 15. I’ve previously argued that section 15 can be understood to include inherent executive powers, but suffice it to say, this idea is untested and seen as incompatible with legislature’s supremacy over the executive in the Westminster tradition. Fegeau J’s ruling makes me think the concept of inherent executive power isn’t that far fetched.

Bilingualism, the Charter, and the Lieutenant Governor of New Brunswick

The Queen’s Bench of New Brunswick just ruled that the appointment of a unilingual Lieutenant Governor by the federal government violates the Charter. However, Chief Justice DeWare declined to invalidate the appointment, noting the significant ramifications of doing so (i.e. basically declaring that all legislative enactments and executive decrees since the appointment would be null and void.)

This is an interesting, but implausible, ruling.

Among other things, the ruling side steps the most important counterpoint: that one constitutional provision shouldn’t invalidate another. Section 58 of the Constitution Act 1867 is a constitutional provision. Treating it as a common law prerogative to ensure that the appointment is justiciable and subject to a Charter challenge looks like a sleight of hand. Put differently, the appointment of an LG is a constitutional power of the federal Cabinet, not an authority recognized at common law that can be displaced by statute.

Yes, the appointment of an LG is without a doubt an executive action by the Prime Minister. But it’s hard for me to accept that it’s not a constitutionally insulated decision in terms of who is named, not only as a political question but in terms of the Crown’s discretion over vice-regal representatives. I also don’t see how this ruling aligns with past findings regarding ministerial and senatorial appointments.

Next, the ruling tells us that this isn’t about the bilingualism of the LG as an individual, but about the LG as a institution. As per the Charter, people in New Brunswick have the right to communicate with, and get services from, provincial institutions in either French or English. In order to get around the fact that a member of the public would get communications and services from the office of the LG in either language, though, the ruling still points out that the LG herself doesn’t speak French, and that nobody else can act for the LG, meaning that someone couldn’t communicate with a member of the public in that language in her stead. So, the issue isn’t the attributes of the LG as a person, but of the institution, though the LG is so unique as a institution that the attributes of the LG as a person are what matters here. That’s a lot to unpack and wrap one’s head around.

The ruling makes important points about the LG’s role in New Brunswick society and how the province’s bilingual essence is recognized by the constitution. Still, I can’t help but feel that the issue here isn’t about Charter compliance, but about constitutional convention. The idea that someone’s Charter rights are being violated because the LG can’t engage in conversations in French seems like a really big stretch.

To my mind, the ruling would have been on much firmer ground had it found that the Canadian constitution includes a convention that the Governor General and Lieutenant Governor of New Brunswick should be bilingual in English and French. The Charter could have been used to bolster the case that this convention exists. The court could therefore have found that the convention was violated in this case, but that as a political rule, the convention is not judicially enforceable.

Instead, the ruling uses an expansive understanding and application of the Charter to arrive at the conclusion that the government violated the Charter when appointing a largely ceremonial figurehead, but that it is up to the federal executive to find a remedy as per Khadr and the separation of powers. Basically, there was a much easier and more plausible an way to get to the same end result. Indeed, I can’t help but feel that the ruling will collapse on appeal on account of its highly complex and contestable interpretations of the interaction between different parts of the constitution.

NSICOP OP-ED FAQ

I have an op-ed in the Globe and Mail today calling for a security-cleared national security Committee of Parliament.

Here are a few responses to questions and counterarguments I anticipate.

1) How will we deal with members’ privilege of free speech?

We can keep the current provisions of the NSICOP Act that limit the privilege.

Parliament can legislate specific criminal provisions for the committee, as Australia does.

We can ensure that the houses sanction members who abuse their privilege.

This isn’t the problem it’s made out to be, sorry.

2) Won’t the committee be partisan theatre?

When dealing with classified information, the committee will not be meeting in public. This will reduce the partisan theater, since there will be nobody watching.

There may be open sessions, sure. Will that be taken over by theatrics? Maybe. But it likely won’t be the same behind closed doors when the committee is doing its classified work. This happens in Belgium, where parliamentarians will be more partisan when in a public committee, but less so in a closed committee.

Oh and take a look at the NSICOP members from the last Parliament. You may notice that some of the opposition members engaged in partisan theatre when in the legislature and in public. Did they do the same as part of NSICOP? Probably a lot less. Maybe that’s because theatrics are put on and reserved for public places where they’ll get attention. Just a thought.

Not all committees are partisan theatres. The Public Accounts Committee does serious work, for instance. Evidence from other countries suggests this would happen with a parliamentary national security committee, too.

Perhaps more importantly, are we saying that we shouldn’t bother with any legislative committees because of their theatrics? Should be delegate all accountability functions to officers of Parliament and executive bodies? Why not?

3) We’ll end up with terrible members because the executive won’t control their appointment.

The UK Intelligence and Security Committee members are appointed for the life of a Parliament by the houses on the recommendation of the PM and the leader of the opposition. This is effectively the process we have now for NSICOP, but in a legislative setting. We could mimic this without difficultly.

Again, this isn’t the problem it’s made out to be.

4) Members would be irresponsible yahoos if they were part of a parliamentary committee.

Why? Why would having NSICOP as a legislative committee change the behaviour of the members, particularly if it does most of its work in camera and there are clear penalties for leaking or mishandling information? What’s the theory here? How does putting the committee in the legislature fundamentally alter its dynamics?

More to the point, someone needs to explain how being appointed to an executive office magically changes someone’s suitability to have a clearance or do serious work. What miraculous transformation occurs when a parliamentarian is appointed to a Governor-in-Council position, or better yet, becomes a minister?

Put differently, why do we think parliamentarians are necessarily untrustworthy if they don’t also hold an executive office? What is it about holding an executive office that makes a parliamentarian more trustworthy than when they only hold a legislative one?

5) The current controversy over the National Microbiology Lab demonstrates that Parliament isn’t ready for a national security committee.

How are we making this connection? The opposition is using the powers it has to put the government in a tough spot. That’s usually what opposition parties do in a minority parliament.

We actually have no evidence that the partisan fervor over the documents would be replicated in a national security committee. In fact, we can easily make the opposite case. Right now, demanding the documents is attractive because it’s putting the government in an impossible position. If there were a parliamentary committee and processes to handle these documents, the government would be in a far less difficult position, which would lead the opposition parties to focus on something else.

Arguably, it is precisely because Parliament can demand the documents but that the legislature can’t safely handle them that the opposition is doing everything it can to make the government suffer here.

6) Why can’t we rely on ad hoc committees?

The ad hoc committee established to deal with the Afghan detainee documents was also executive-based. Presumably, the proposal to create another ad hoc committee would be the same. In that sense, an executive ad hoc committee faces the same challenge as NSICOP.

Above all, though, both ad hoc committees and NSICOP still don’t leave Parliament with a capacity to deal with classified information. That’s where we need to it to avoid future clashes between privilege and protecting secrets.

7) Parliamentarians won’t want access to classified information or to sit on a security cleared committee

This one is courtesy of Steve.

Here’s the problem, though. Parliamentarians have been sitting on NSICOP, with access to classified information.

So, this thing that won’t happen is already happening.

Why are parliamentarians already doing this? Because the law says that there will be this committee.

A law creating a legislative committee would do the same.

Parliamentarians would do what they supposedly won’t do but are already doing because they would have to.

Can Canada go without a Queen? Probably.

With Barbados becoming a republic, this blog turns once again to the question of “Why can’t Canada ditch the monarchy?”

As any good reporting on the subject will note, the answer is that it would be too hard Canada to become a republic. To do so, we would need to use to unanimous amending formula set forth in section 41 of the Constitution Act, 1982. Even if we could agree to end the monarchy in principle, opening up the constitution would inevitably lead to negotiations about other issues that won’t go anywhere.

Given the amending formula, dedicated Canadian republicans should focus their efforts on the United Kingdom. Were the United Kingdom to become a republic, we would be forced to deal with the monarchy in our own constitution.

Or would we?

In a new article in Review of Constitutional Studies, Marie-France Fortin outlines a novel argument as to why the 2013 changes to the rules of royal succession did not trigger an amendment to the “office of the Queen” under section 41(a). As I read her article, she argues, in part, that the rules of succession apply to the Sovereign’s natural capacity only, rather than the Queen’s official capacity. Since the Constitution Act 1982 deals only with the office of the Queen, it follows that a matter pertaining to the Sovereign’s natural body would not trigger the unanimous amending formula.

Extrapolating from this argument, we might ask if Canada actually has a natural bodied Sovereign in a constitutional sense? Specifically, if the office of the Queen and other references to the Queen in the constitution refer to the Sovereign in an official capacity alone, we can ask if the Queen is merely an office in a Canadian context. And if it is, could this office be left without a natural occupant?

The answer to the first question is that, no, the office of the Queen is occupied by a natural person in Canada. That person is Queen Elizabeth II. She occupies the office of the Queen of Canada because British law identifies her as the Queen of the United Kingdom and there is (apparently) a principle of symmetry in the Canada constitution that the office of the Queen of Canada is occupied by whoever occupies the office of the Queen in the United Kingdom.

But what would happen if there was no Queen of the United Kingdom or natural person identified as holding that office in British law? What would happen if the was no foreign monarch to take as our own? Perhaps nothing.

There’s clearly no requirement to fill the office of the Queen in Canadian law, since Canadian law doesn’t include any rules about who fills that office. The only thing we have is a principle that we take the United Kingdom’s monarch as our own. So, we could technically just leave the office empty or perhaps try to fill it with a unilateral section 44 constitutional amendment by Parliament.  

What would be the practical effect of leaving the office of the Queen vacant? Arguably nothing, thanks to the Letter Patent 1947. The Letters Patent 1947 (apparently) allow the Governor General to exercise all of the Queen’s powers, including those that we’ve decided to leave with the Queen, such as the power to appoint and dismiss the Governor General and name additional senators under section 26 of the Constitution Act 1867. Under this reading, which is supported by the absence of a Canadian regency act, the Governor General would simply exercise the Queen’s powers in the absence of a natural bodied Sovereign. Interestingly, of course, this also means that Canada could exclude the Queen or a future King from exercising any powers for or in Canada right now.

Those who wish to avoid reopening the Canadian constitution can therefore take solace. We might not have to discuss the office of the Queen or become a republic if the United Kingdom did.

A whole host of other problems might arise if this happened though, notably around whether the executive could exercise the Crown’s powers of a person under common law if the Queen has no natural capacity, but we’ll leave that for another day.

Form, Substance, and Prerogative Power

I have a new article out in Canadian Public Administration about defence intelligence and the Crown prerogative. The article is a response to two reports on defence intelligence produced by the National Security and Intelligence Committee of Parliamentarians (NSICOP), and a wider reflection on how prerogative power fits within Canadian modern government.

One issue that’s operating in the background of my analysis, but which I didn’t have room to explore in detail, is how debates about the Crown prerogative are caught up with form over substance.

What do I mean here? Essentially, critiques of the prerogative often focus on the legal form that an executive authority has (common law or statute), rather than what that authority substantially empowers the executive to do.

I’m skeptical there is an inherent benefit to replacing the form of an authority while leaving the substance of that authority unchanged. To my mind, it’s not evident why the form of the authority should change if we aren’t planning on altering the capabilities or activities that are authorized. In the case of defence intelligence and the prerogative, there doesn’t seem to be any substantive concerns with the fact that DND/CAF have intelligence capabilities or that the intelligence activities they’re currently undertaking. Instead, the worry is simply that some of these capabilities and activities are sourced in prerogative rather than statute.

As a rejoinder, my colleague Craig Forcese has argued that form and substance are intimately connected when it comes to prerogative. Specifically, Craig has posited that prerogative is an “uncertainty engine”; because the authority granted by prerogative isn’t codified, we aren’t sure what it does and doesn’t authorize. Replacing prerogative authority with statute would address this uncertainty.

As I allude to in the article, though, this gives legislation too much credit. Statutory authority is often broad and unclear about what it might and might not allow. Indeed, the courts would have a lot more time on their hands if statute had a significant effect on legal uncertainty. As discussed in the article with respect to intelligence matters, for example, there have been important interpretative disagreements about the CSIS Act. Statute doesn’t necessarily remove uncertainty, unless you’re trying to explicitly forbid certain things. And even then, the language used to forbid can be contested and subject to varying interpretations.

Are the interpretive questions that surround prerogative worse, though? I don’t see any real evidence of that. Most of the landmark cases we have about the prerogative have been about whether something the Crown/executive did fell under the authority provided by the prerogative. But it’s hard to see how this is any different than other interpretative disputes related to statutes or the common law generally.

So, when the argument is made that all defence intelligence activities should be placed on a statutory basis, this leads me to ask: what will this change, substantively?

Will it protect defence intelligence from infringing on the rights of Canadians? The Charter, Privacy Act, and Criminal Code already prevent that, since prerogative is limited by the wider statutory environment. Will it provide greater certainty about what defence intelligence can and can’t do? If the statute is crafted in a way that limits defence intelligence to specific types of activities it might, though given the significant risks this would pose to the CAF’s ability to quickly adapt to new threats and operational circumstances, I suspect the statute would be broadly worded to allow for a wide degree of flexibility.

Statute could, of course, provide DND/CAF with more authority than prerogative currently provides, as NSICOP recommended with respect to empowering the military to gather intelligence about Canadian foreign fighters, but that’s not really a certainty question. As NSICOP argued in its second defence intelligence report, statute would be needed to grant DND/CAF this authority precisely because the military’s lawyers don’t think that prerogative allows them to gather intelligence that violates the rights of Canadians, even if they are foreign fighters.

Interestingly, though, looking at the United Kingdom, we see that additional authorities can be granted to defence intelligence (in the British case, the Chief of Defence Intelligence under the Investigatory Power Act 2016) without displacing the prerogative as the underlying authority to conduct defence intelligence. This suggests that we could fulfill NSICOP’s recommendations with respect to foreign fighters without displacing the prerogative. We could simply layer a statutory authority on top of the prerogative. In fact, this wouldn’t be all that different from how we handle pardons, although in that case the relevant statute doesn’t further empower the executive, but adds a process alongside the Governor General’s prerogative authority.

Anyhow, you can now see why I couldn’t include this line of argumentation in the journal article itself (word limits and such). As much as I get why prerogative rubs people the wrong way because it’s tied to the historical powers of the monarch and the great confrontations between the Crown and Parliament, the form-focused argument that prerogative is bad simply because it’s a power recognized at common law rather than one granted by Parliament isn’t very persuasive. As I concluded in the article, the real issue here is the substantive things we want or don’t want defence intelligence to do.

A Critical Juncture for Excommunication Culture

Last month I wrote a piece for The Line on the difference between ‘cancel culture’ and ‘excommunication culture’.

Part of my motivation for writing the article was to highlight that the excesses of excommunication culture couldn’t last. Unwarranted debasements of one’s peers can only go on for so long. At some point, people get fed up and stop playing along with the purity arms race that drives excommunication culture.

I’d argue that we’re reaching that critical juncture with the excesses of excommunication culture, the inflection point where the average person says enough is enough. We’re headed toward a more stable environment where greater care will be taken to differentiate between those who deserve to be punished and excluded, and those who’ve made a forgiveable mistake or who were simply the victim of a hyped up narrative of wrongdoing.

Why do I think we’re at this critical juncture?

First, there’s the wider culture. Check out the new Netflix show, The Chair. It’s in part about a prof who gets excommunicated for making a bad joke in class. Those who drive the excommunication effort in the show, undergraduate students and administrators focused on institutional reputation, don’t come across very well. The undergrads are portrayed as one-dimensional, incapable of understanding nuance and context, and of one mind. I’ve never come across a student body that looks like that and I suspect that a growing number of students are getting tired of being seen as a bunch of ideological lemmings. Administrators, on the other hand, do tend to be squarely focused on reputation. But they’re also incredibly sensitive to changes in public perceptions and mood. As universities increasingly become objects of derision and mockery for allowing excessive excommunications, administrators will shift to defending the importance of free expression and a liberal education. The Chair suggests we’re headed there in the way it portrays the sheer cravenness of the dean.

Second, there’s the growing professional class pushback. Today’s Anne Applebaum column in The Atlantic can be read as a cry that all is already lost, that excommunication culture is taking over and that it can’t be stopped. I’d argue that the column shows the opposite. Once columns like this start getting published more and more, which they have and will, it means the pivot has already happened. When mainstream outlets and the professional class start panicking about something (especially something they fuelled), it’s on the way out already.

Am I saying that there won’t be anymore unjustified excommunications? Nope. The pivot only means the slope is now headed downward, not that the trend will cease altogether. Indeed, those who rely on excessive excommunication to get their way or jockey for ingroup status will probably get more zealous as they see their power and influence diminishing. Twitter mobs will still gather and make demands, but institutions will eventually figure out that they aren’t a proxy for what most people think.

Importantly, though, those who have done actual harm will still be punished and shunned, and legitimately so; for all their excesses, progressive excommunications were initially motivated by a need for much needed change, as Applebaum notes. The aim will now be to restore proportionality and due process to the righting of wrongs. As those who actually care about progress and social justice already know, moreover, movements that instill fear and alienation among those they’re trying to persuade ultimately undermine themselves. While the past few years of amped up excommunications surely made many feel that they were taking down those who deserved it, the adrenaline rush is ending and the time to build lasting coalitions has returned.

Dissolution and the ‘Spirit’ of Responsible Government

What’s at the core of the debate about the Governor General’s discretion over the dissolution of Parliament?

Commentators such as Andrew Coyne and Thomas Mulcair think that the Governor General could refuse the Prime Minister’s request to dissolve Parliament at this stage. I disagree for the reasons I outline here and here.

How are we arriving at these differing conclusions? It ultimately comes down to one issue, which is the same matter that was at the crux of the 2008 prorogation controversy: what happens if the Governor General refuses to act on the Prime Minister’s advice or recommendation?

According to one school of thought, the Governor General can simply refuse the Prime Minister’s advice or request with no consequence or ramifications. So, were Trudeau to request that Simon dissolve Parliament, she could just say “no” and the Prime Minister would sit there dumbfounded and annoyed.

There are international precedents for this view, as laid out in Twomey’s book on reserve powers. It also has intuitive appeal. If the Governor General has discretion over dissolution, that should mean that they have the power to refuse a request, full stop. In this view, the Governor General is like a gatekeeper. The Prime Minister’s requests are only granted if the Governor General is satisfied that they’re above board.

For the other school of thought, to which I subscribe, there’s a consequence tied to the refusal of a Prime Minister’s advice or recommendation. Specifically, if the Governor General refuses a Prime Minister’s advice or request, the Prime Minister should either resign or be dismissed. Why’s that? Put simply, it’s because of the foundational convention of what we call ‘responsible government’.

When people think about responsible government, they tend to associate it with the Prime Minister and Cabinet having to maintain the confidence of the House of Commons. And that is indeed one of the core conventions of responsible government. But it’s not the foundational convention. A lot happened before we got there, constitutionally.

The foundational convention of responsible government is that the Crown acts on the advice of ministers. This convention emerged to deal with a sticky problem: how do you deal with the Crown acting incorrectly or illegally if the Crown can do no wrong. The answer was that, if the Crown screwed up, it was because the Crown has acted on bad advice from its servants, notably ministers. As time went on, this convention morphed into the idea that ministers were ultimately responsible for everything the Crown did, particularly in constitutional matters. Indeed, this was critical to the development of our constitutional monarchy and parliamentary democracy. The Crown remained the formal governing power, but its authorities were exercised by responsible ministers who were accountable to Parliament, and later held the confidence of the elected house.

These conventions remain in place today. The Crown as the executive power acts in all sorts of ways all day, every day. Although we can argue that ministers no longer consider themselves responsible for everything that happens in government, they’re still the ones who answerable before Parliament for what the executive does.

The Prime Minister has a special responsibility in this arrangement. Since they advise the Crown directly, they are responsible and accountable for the exercise of nearly all the Queen and Governor General’s constitutional functions and powers. If the Prime Minister advises the Queen to appoint a lacklustre Governor General, then the Prime Minister has to answer for the situation and find a remedy. If the Prime Minister decides to prorogue Parliament for crass partisan reasons, they’re the ones who are held to account for it. Asking the Queen or the Governor General to answer for these decisions wouldn’t make much sense, since the whole point is that they aren’t the ones making the call.

Does this mean that the Crown always has to accept the Prime Minister’s advice or requests? No. As with all conventions there are exceptions and flexibility. One of these exceptions is a prime ministerial request to dissolve Parliament shortly after an election. However, to keep this exception from being completely at odds with other conventions, notably the Crown acting on ministerial advice and the confidence convention, the Governor General should only refuse this request if she is prepared to name another prime minister.

What’s the logic here? If the prime minister is trying to end a parliament because they can’t hold confidence, then it only makes sense to refuse that request if another leader is able to secure confidence. Otherwise, the Governor General would be propping up a zombie government that the House of Commons is unwilling to accept. (Incidentally, this is not unlike what we saw in the United Kingdom in 2019, owing to their Fixed-Term Parliaments Act, which removed the Queen’s power to dissolve Parliament.)

What if the Prime Minister still has confidence? In that case, the need to name another Prime Minister is as important, if not more so. Simply put, if the Governor General is prepared to reject the request of a Prime Minister who holds the confidence of the democratically elected Commons, she should only be doing so knowing that she can name another Prime Minister who can also hold confidence. Otherwise, the Governor General would be acting contrary to the one indicator that the Crown has of the government’s democratic legitimacy: confidence. And if there’s any doubt about that democratic legitimacy, or of an alternative prime minister to demonstrate it, then the Governor General’s best course of action is to accept the dissolution and let voters decide.

In fact, if the Governor General refuses to act on a dissolution request of a Prime Minister who holds confidence, but the Governor General is unwilling or unable to name a replacement, then the Prime Minister would be within their right to ask the Queen for a new Governor General.

One counterargument is this: the Governor General would be preserving democracy by preventing a Prime Minister from dissolving Parliament, absent a vote of no confidence. The problem here is that this argument privileges the parliament over the democracy in parliamentary democracy. It’s hard to see how keeping a parliament going is more democratic than allowing another election, especially if enough time has passed since the last dissolution, which is exactly what the custom around the refusal of a request to dissolve gets at (6-12 months since the last election, tops.) And it’s equally hard to see how allowing the appointed representative of the Queen to prevent a Prime Minister from dissolving Parliament when there’s no viable alternative government waiting serves the democratic principle.

What about the fixed date election law? Shouldn’t the Governor General enforce the spirit of that law? Well, first off, the statute has to be read in light of the constitution; indeed, good luck making sense of most of our core laws, including the Constitution Act 1867, without reference to constitutional convention. With that in mind, why should this statute, which explicitly recognizes the Governor General’s power to dissolve Parliament (always upon the Prime Minister’s request, by the way), be used to disregard so many other constitutional rules listed here above?

The spirit of the law, moreover, is a difficult thing to divine. The courts have already told us that the fixed date election law doesn’t prevent an early dissolution. We have a number of precedents, federally and provincially, which show that early dissolutions are not contingent on votes of no confidence. We can point to what the justice minister said about the bill when it was making its way through Parliament, but we can also point to his Prime Minister asking and getting the Governor General to dissolve Parliament without a vote of no confidence soon thereafter. I, for one, am also a bit hesitant of taking what ministers say at face value when they explain their decisions and motivations before Parliament, but maybe that’s just me.

Finally, what other legislative spirits should the Governor General be enforcing? Should the Queen’s representative be dismissing governments who fail to live up to climate change treaties? Should the Prime Minister be summoned to Rideau Hall for failing to allow enough Canadians to join the middle class? What’s are the cut-offs and criteria here?  

In sum, if Parliament is dissolved in the coming weeks or months, one person is responsible and accountable for the decision, the Prime Minister. If Canadians are unhappy with this move, they can punish his party at the polls. If we do head for an election, the Governor General will have done no wrong.

Dissolution is the Prime Minister’s Call Right Now

As per usual, we’re debating whether the Governor General can refuse the Prime Minister’s request to dissolve Parliament.

Also as per usual, we need to clarify a few fundamentals:

Yes, the Governor General retains the discretion to refuse a Prime Minister’s request to dissolve in certain limited circumstances.

No, those circumstances are not present at the moment.

What are the circumstances?

A dissolution can be refused if an election has recently taken place, say within the past 9-12 months, and there’s another viable government among the parties in the House of Commons.

There may also be some very exceptional circumstances where the Governor General would discourage a dissolution if it is being requested for nakedly partisan reasons, with no obvious connection to the right of voters to express themselves.

For instance, imagine a Prime Minister’s party was elected with only a plurality of seats, not a majority, but no other party or coalition can form a viable alternative government. Would the Prime Minister be able to go back to Governor General and ask for dissolution within a couple of months of the election, in hopes of securing a majority? Technically, the Governor General wouldn’t have much room to manoeuvre. The Governor General could pressure the Prime Minister to rethink the request. If the Prime Minister insists, though, the best course of action is to let voters decide the Prime Minister’s fate. Political sanctions are almost always the preferred way to deal with a Prime Minister who is abusing their authority. The Governor General is a constitutional fire extinguisher, not a referee.

Most political leaders know these rules. If they’re saying otherwise, they’re posturing, nothing more.

If you want to know more about how this all works, here’s an article of mine you can download.

And while we’re on the subject, a few more fundamentals:

We are not in a caretaker period because there might be an election soon. The caretaker period only starts once the request to dissolve Parliament has been accepted by the Governor General.

The current government remains in place during the election period. The caretaker period doesn’t prevent them from governing. In fact, given the pandemic, the government has every right, and indeed the responsibility, to take actions with respect to the pandemic.

Canada’s fixed-date election legislation preserves the Governor General’s power to dissolve Parliament on the Prime Minister’s request. Whatever you think about the spirit of the law, the letter of law is quite clear here.

The Commissioner vs the Constitution

The Commissioner of Official Languages, Raymond Théberge, is launching an investigation into the appointment of Mary Simon as Canada’s new Governor General.

After receiving over 400 complaints about Simon’s lack of fluency in French (see my views on the matter here), Théberge will be investigating the Privy Council Office (PCO). On the surface, it’s not hard to see why he is focusing on PCO. It’s the only federal institution he might hope to claim jurisdiction over in this matter. If he honestly believes PCO decided on Simon’s appointment or that they violated any Act of Parliament, though, he needs to bone up on the Canadian constitution.

The Governor General is appointed by the Queen under her prerogative authority. The exercise of this power is the most important function the Queen plays in the Canadian constitution today. It’s unlikely that the courts would consider exercises of this power justiciable, and it’s almost certainly protected by the unanimous constitutional amending procedure under paragraph 41(a) of the Constitution Act, 1982.

Théberge evidently realized that he couldn’t investigate the Queen under the Official Languages Act. The Queen doesn’t constitute a federal institution under that law and there’s no Act of Parliament that touches on the appointment of the Governor General by the Queen. The Governor General’s Act doesn’t deal with the Queen’s power to appoint the Governor General and the Letters Patent 1947 that define the Governor General’s functions and powers are not an Act of Parliament.

The Office of the Governor General headed by the Secretary to the Governor General is a federal institution under the Official Languages Act, but nobody is claiming that it doesn’t run in both official languages. Nor is there any suggestion that Rideau Hall won’t work in both official languages once Simon takes up her office. So, that’s another dead end for an investigation.  

Let’s look at the bilingualism requirement itself. Did the Prime Minister break any laws by recommending Simon to the Queen? Nope. The rules that surround the appointment of the Governor General are constitutional conventions, not laws. We keep certain core constitutional rules as conventions to ensure that that courts (and overreaching officers of Parliament, it seems) don’t try to enforce them. The consequences of skirting convention are political, not legal. As importantly, even if convention demands that the Governor General be bilingual, conventions are meant to be flexible. They’re also meant to evolve, which runs counter to attempts to cast them in stone.

With nowhere else to turn, Théberge has decided to focus on the one federal body where an investigation might have traction: the Prime Minister’s department, aka PCO. What’s PCO’s role here? PCO coordinates the appointments process and assists the Prime Minister in his official communications with the Queen, including in matters related to the Governor General. As part of this particular vice-regal appointment, PCO also supported the committee of notables that advised the Prime Minister on potential candidates for the office. As far I can surmise, it seems like Théberge is going to check if PCO officials and the advisory committee paid enough attention to bilingualism when looking at potential candidates. Or maybe that they failed in some way by offering up the name of someone who isn’t bilingual? Who knows.

The problem, though, is that PCO and the committee were offering non-binding advice. That’s it. The Prime Minister was free to ignore them and demand only bilingual candidates if he wanted. He didn’t. He decided that convention could be bent a bit, or perhaps allowed to evolve, to allow him to recommend Simon to the Queen. And the Queen, in keeping with constitutional convention, duly appointed who her Prime Minister recommended.

In essence, then, Théberge will be investigating bureaucrats and an advisory committee for providing non-binding advice, on a non-justiciable decision that was the Prime Minister’s to make, under a constitutionally-protected power that the Queen exercises.

Ok, then.

NSICOP 2.0

It’s time to start thinking about making the National Security and Intelligence Committee of Parliamentarians a National Security and Intelligence Committee of Parliament

With the official opposition boycotting the Committee and its vulnerability to the realities of a minority parliament now evident, we need to think about a reboot. 

My friends and colleagues are wont to blame the current kerfuffle on politicians. From this perspective, the Committee has been undermined by politics and the inability of parliamentarians to behave responsibly. The boycott is also seen as a blow to parliamentary oversight of national security affairs. 

As I argued yesterday, the underlying problem with NSICOP is its structure (an executive body), not the agents (parliamentarians). As an executive body, NSICOP was going to run into trouble when the opposition parties controlled the Commons. Portraying NSICOP as a de facto parliamentary committee wasn’t going to cut it when we faced a stand-off between the legislature and the executive. NSICOP wasn’t going to be an acceptable stand-in for parliamentary scrutiny of national security affairs when the opposition has the power to demand actual parliamentary accountability. Instead of blaming parliamentarians for being parliamentarians, we should ask why we thought it was wise to set up an executive review body and pretend that it was a viable substitute for a proper legislative committee. 

If the underlying issue here is that NSICOP is an executive body, rather than a legislative one, then the solution is arguably to transform it into an actual parliamentary committee. 

What problems would making NSICOP a parliamentary committee solve?

First, it would mean that when a house of Parliament demands national security documents from the executive, there would be a parliamentary committee to review them. This would avoid the legitimate concern that the Commons’ privileges and powers are being diluted by referring these matters to an executive body. 

Second, if NSICOP were a parliamentary committee, the opposition couldn’t claim the government is skirting parliamentary scrutiny if the matter was referred to the committee. It would no longer be necessary to pretend that NSICOP is involved in parliamentary oversight because its members are parliamentarians. The opposition could no longer use the Committee’s status as an executive body to decry that Parliament and its powers are being undermined. 

Third, it would empower Parliament. There’s something pretty sad about the fact that we thought creating an executive body was a victory for parliamentary accountability. Indeed, it says a lot about the sorry state of the legislative power in Canada that we thought the way to strengthen parliamentary accountability was to create an agency within the executive. I mean, come on, people.

I expect the response to these structural points will be that parliamentarians can’t be trusted with national security issues or security clearances. The Conservative’s boycott of NSICOP will be presented as evidence that parliamentarians can’t be serious about these issues and that a parliamentary committee will be even more politicized. 

Although I get that sentiment, let’s look at what’s actually happened here. The problem isn’t that the members of NSICOP were irresponsible or that they misused their clearances or mandate for political ends. Whatever else we can say about the current confrontation, it doesn’t suggest that parliamentarians can’t be trusted with classified information. 

Seeing the opposition’s demand for documents as unserious or irresponsible, moreover, reflects an executive perspective. The executive thinks that only an executive body should see documents from the executive. The executive maintains that parliamentarians serving in an executive capacity is a good compromise when the legislature seeks to hold the government to account. That may seem like a non-partisan and serious way of looking at it if you adopt the government’s point of view. If you come at it from a parliamentary perspective, though, you see a partisan executive trying to get around the legislature’s constitutional functions and powers. Defending those functions and powers may seem unserious and purely partisan from the executive’s point of view, but its a very serious matter if you look at it from a parliamentary vantage point. 

Lastly, it’s worth addressing the question that’s floating around this entire discussion: how would we prevent members of a parliamentary national security committee from sharing classified information under the cover of parliamentary privilege? This isn’t the intractable problem it’s made out to be: take a look at how the Australians and the British manage this risk with their parliamentary national security committees. But aren’t Canadian parliamentarians different? Aren’t they particularly irresponsible?

Well, perhaps the way to make them act more responsibly is to make them more responsible.