Making Sense of Constitutional Crises

Not surprisingly, my suggestion that the Governor General dismiss Stephen Harper as Prime Minister for his (Mr. Harper’s, that is) unconstitutional policy of not appointing Senators turned out to not to be any more popular than my earlier suggestion that the Governor General just appoint Senators on his own, without the Prime Minister’s blessing. That idea was met with admonitions about the importance of the conventions of responsible government, said to be such that it is better for the Governor General to dismiss a Prime Minister who fails to give constitutional advice than to act on his or her own. But no one really wants the Governor General to dismiss the Prime Minister, for doing so would trigger, it is said, a constitutional crisis. It is not, Andrew Coyne said, a sensible thing to do.

Triggering constitutional crises is, indeed, a dubious idea. The trouble ― and really the key point of my last post ― is that we already are in a constitutional crisis, courtesy of Mr. Harper. The crisis, to be clear, does not lie in the Senate’s reduced numbers and diminished capacity (though that will become a crisis in itself eventually). The crisis, rather, consists in the fact that the effective head of the executive branch of government is refusing to comply with a clear and, so far, undisputed constitutional obligation. Perhaps it is nevertheless true that we should not try to solve this crisis by creating another one. But to say that is not to answer the question of how we should solve the problem of a lawless, constitution-flouting head of government.

I should stress that, in my view, Mr. Harper’s position on Senate appointments is a unique and unprecedented act of defiance. It is often said that his government has a history of engaging in actions or introducing legislation that they know is unconstitutional. Yet it had, until now, always proffered at least some arguments, albeit often weak ones, in defence of its legislation. While it has occasionally dithered about complying with its constitutional obligations (such as appointing a judge to replace Justice Nadon on the Supreme Court, or responding to the Supreme Court’s decision on assisted suicide), it ultimately did comply. Here, Mr. Harper has made no attempt to articulate a constitutional argument in defence of his position, and his commitment is too firm for him to back down on his own.

Emmett Macfarlane and Michael Plaxton both suggested that we should wait for courts to rule. But again, it is not clear that they will or ought to rule in favour of Aniz Alani, who is challenging Mr. Harper’s policy of not appointing Senators ― not because there is any doubt about that policy’s constitutionality, but because there is doubt about the courts’ power to remedy it. (Prof. Macfarlane has an interesting suggestion in that regard, arguing that non-appointment amounts to a constitutional amendment in violation of Part V of the Constitution Act, 1982. I think that would be a compelling argument at some point, but it is at least arguable that we are still far from having reached that situation.)

And just as importantly, I think it is worth at least asking whether we are right to think that judicial remedies are always better than political ones. They seem less shocking, less prone to generate crises. But what makes them so? The fact that judges are outside politics, perhaps. But then, so is the Governor General. And not everyone will agree that judges really are outside politics at all. (This also brings to mind an exchange I had with Mr. Coyne when he graciously accepted to publish an op-ed of mine arguing that the Supreme Court was wrong to constitutionalize some rights of organized labour in a series of decisions this winter. I suggested that we should, as a last resort, pursue a constitutional amendment to reverse these decisions. Mr. Coyne was skeptical of the amendment idea ― but not of my suggestion that governments should try to get the Court to reverse itself. But why should that judicial remedy be less problematic than the political remedy afforded by the amendment procedure?)

Those who disagree with me probably believe that the dismissal of the Prime Minister, even an avowedly lawless Prime Minister, by the Governor General would cause more harm than good to our institutions. They might be right. But I wonder if they are letting the short-term, shit-hits-the-fan consequences of this, admittedly radical, action blind them to the less visible, but insidious consequences that nothing being done will have for the Rule of Law, and especially for the respect for the constitution. Many of our constitutional rules only exist so long as political actors abide by them and, ultimately, all public law is dependent on the government’s commitment, which cannot be coerced, to comply with binding legal rules. This commitment is fraying, and I can only hope that this process will somehow be stopped before it is too late.

Dismiss Him

The Prime Minister, Stephen Harper, has announced that he will no longer be making any Senate appointments. Not that he had been making any recently ― in the last couple of years in fact. However, just last month, for the purposes of contesting Aniz Alani’s court challenge to the apparent policy of non-appointment, the federal government’s lawyers had told the Federal Court that “there was no ‘decision not to advise the Governor General to fill the currently existing [Senate] Vacancies’.” So a clear statement to the contrary is an interesting development.

Actually, it is a pretty shocking one. The constitution, in no uncertain terms, requires Senators to be appointed. Section 32 of the Constitution Act, 1867, provides that “[w]hen a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy” (emphasis mine). The word “shall” in a statutory ― or constitutional ― text indicates that the action is mandatory, not discretionary. And while the constitutional text is silent on the matter, we all know, and in its response to Mr. Alani’s challenge the federal government strenuously argues, that there is a constitutional convention dictating that in “summoning” persons to the Senate, the Governor General acts on the advice of the Prime Minister. If the Governor General has a constitutional duty, but can only exercise it at the Prime Minister’s direction, it follows that the Prime Minister has a duty to tell the Governor General what to do.

It is worth noting that the government’s response to Mr. Alani’s challenge does not allege the contrary. Rather, the government is essentially saying that the Prime Minister is entitled to get away with it, because the federal court, or perhaps no court, can issue a ruling to the contrary, notably because such a ruling would involve the “enforcement” of a constitutional convention. This may indeed be so. I noted here that Mr. Alani’s claim faced some real difficulties, and although in Alani v. Canada (Prime Minister), 2015 FC 649 the Federal Court dismissed the government’s motion to strike it, it is still not clear that the Court can grant the remedies that Mr. Alani seeks. Nevertheless, an argument that a duty is not enforceable by a court is not the same thing as an argument that the duty does not exist at all. And if the government does not make the latter argument in trying to prevent the courts from enforcing the duty in question, that’s probably because it knows that such an argument would be risible.

Mr. Harper’s announcement, then, is an open declaration of a resolve to act in dereliction of his constitutional duty. And contrary to what some might think, this problem does not only become serious once the Senate is short-handed enough for its functioning to be seriously impaired. At that point, it is true, an additional constitutional violation may arise, in that the Senate’s role in the constitutional “architecture,” which the Supreme Court has said is constitutionally protected, would be compromised. But that’s a separate matter from the fact that the head of the government of Canada is openly defying the constitution and flouting the Rule of Law. That defiance, in my view, needs to be stopped as quickly as possible. The question, then, is how and by whom.

Perhaps the Federal Court (in the first instance) and eventually, presumably, the Supreme Court, might do it in response to Mr. Alani’s challenge. Wittingly or not, Mr. Harper has removed one of the difficulties with that case to which the federal court pointed in dismissing the motion to strike (as I had done earlier), which is that it is difficult to prove that a course of inaction amounts to a judicially reviewable “decision” not to act. Court have in the past treated media announcements as evidence of decisions not to act ― perhaps most notably in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. Still, the chief obstacle to Mr. Alani’s case was always the involvement of constitutional conventions, and the courts may end up concluding that they cannot act.

A somewhat different judicial avenue exists too, however. A province could refer the issue to its court of appeal for an advisory opinion. The attraction of the reference route, in comparison with Mr. Alani’s challenge, is that Canadian courts have historically felt freer to deal with constitutional conventions in that context ― notably in the Patriation Reference. The various jurisdictional and remedial questions that further complicate Mr. Alani’s case would also not arise on a reference. The problem, of course, is whether any provincial government would have the political will to engage in this process. Because Mr. Harper’s stated intention in refusing to make Senate appointments is to put pressure on the provinces to agree on Senate reform, a province opposed to reform, such as Québec, would have a good reason for doing so, but whether that will be enough remains to be seen.

The most certain, but also the most radical, solution of all is an intervention by the Governor General. Back in January, I suggested that the Governor General, if faced with a recalcitrant Prime Minister, should start appoint Senators on his own. That idea did not meet with much approval. It would, people said, undermine the conventions of responsible government, requiring the Governor General to act on ministerial advice. Very well then. Since there seems to be no alternative, let the Governor General dismiss Mr. Harper from office. Not in a few years’ time, when the Senate’s functioning is impaired. Now. Now that Mr. Harper has openly expressed his commitment to violating the constitution. I wrote, in my response to the criticism my suggestion of autonomous appointments, that “a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases.” Well, we have an absolutely clear case in front of us.

It was bad enough when the leader of the opposition was promising that, if elected, he would fail to do his constitutional duty to fill the vacancies in the Senate when they occur. But for the sitting Prime Minister to announce his resolve to flout the constitution is worse. The person responsible for maintaining the Rule of Law and order in society cannot be engaged in civil disobedience. And since in our constitutional system judicial remedies for this situation are, at best, uncertain, it is not improper for the Governor General to resort to the political remedy that the constitution gives him. Once again: Mr. Johnston, dismiss Mr. Harper now.

All or Nothing

I want to come back, briefly, to the crazy idea I put forward last weekend, about the Governor General starting to appoint Senators without waiting for Prime Ministerial advice if it becomes clear that such advice is not and will not be forthcoming. Actually, maybe it wasn’t such a crazy idea because, as Aniz Alani pointed out to me, it was already raised, although not advocated, by experts who testified at a Senate committee hearing regarding a bill that had been proposed ― during Stephen Harper’s previous fit of non-appointment pique ― to force the Prime Minister to appoint a Senator within six months of a vacancy arising.

My post provoked an unusual (for me) number of responses on Twitter (and elsewhere). Most of them were to the effect that my idea was not a good one, because if the Governor General thinks that the Prime Minister is acting unconstitutionally, he should simply dismiss him and appoint a different one, who will give him constitutional advice. (I am too lazy to track them down and link to them now, so you’ll have to trust me on this being the consensus, or at least the majority, view.)

My initial reaction, I confess, was surprise. I had raised this possibility in my post, but thought dismissing a Prime Minister (and his cabinet) would be a “dramatic,” an “extreme” solution to a problem which, although serious, is nothing like, say, an attempt by a ministry to cling to office despite losing Parliament’s confidence. Besides, I wonder about the practicability of this solution. If the dismissed ministry commanded a Parliamentary majority, there would likely be no majority ready to support whatever alternative the Governor General could ask to form a cabinet. The only way out would be a dissolution, following which a dismissed ministry could be re-elected (quite possibly on the strength of a populist appeal against the interference of an unelected Governor General in defence of an unelected Senate!), and we would be back to square one.

On further reflection, however, I also see the logic behind my (friendly) critics’ position. The idea is, I think, that it is so important that the Governor General always act on ministerial advice that it would be wrong for him or her to start acting autonomously even if that advice (or lack thereof) is arguably unconstitutional. The solution to the problem of unconstitutional advice is not to ignore it, but to get a different adviser. It is a powerful argument. The conventions of responsible government, which require the Governor General to follow ministerial advice, are arguably the most important rules in our constitution. To weaken them might mean going back 300 years in our constitutional development.

And as a descriptive matter, this “constitutional position” is almost certainly the generally accepted one in Canada. It explains, for instance, Governor General Michaëlle Jean’s actions during the 2008-09 prorogation crisis, when she accepted the Prime Minister’s advice to prorogue Parliament, even though it was transparently intended to stave off (successfully as it turned out) a Parliamentary vote that would have confirmed that the government had lost the confidence of the House of Commons and triggered its resignation.

Still, there is a paradox here, which makes me reluctant to accept that this constitutional position, albeit dominant, is also a normatively desirable one. At the risk of repeating myself, dismissing a ministry which enjoys the confidence of the House of Commons is a radical, spectacular step for a Governor General to take, and no viceroy in his or her right mind will embark on it without hesitation. It is also, obviously a dramatic departure from the principles of responsible government ― a bigger one, it seems to me, than ignoring that ministry’s advice on one specific point. That’s why I’m finding it strange that, in the face of unconstitutional advice a Governor General is entitled to go for the “nuclear option” of dismissal but not for a carefully circumscribed show of defiance. But this contradiction is, admittedly, more apparent than real. In reality, a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases. For any constitutional transgression that does not obviously warrant dismissal, the lack of any alternative is simply the equivalent of a get-out-of-jail free card for a rogue Prime Minister, which is exactly what happened during the prorogation crisis.

So although I understand why this is the case, I am not at all sure that a rule that vice-regal interventions against a Prime Minister or cabinet who act unconstitutionally must be all-or-nothing propositions is a good thing. It seems, however, to be the generally accepted understanding of the conventions of responsible government in Canada, and I wanted to highlight the fact that my critics were right about that.

Constitutional Defiance

In news which perhaps did not receive the attention it deserved, the federal leader of the opposition, Thomas Mulcair, announced that, if he becomes Prime Minister following the next federal election, he would imitate the current Prime Minister and refuse to appoint any Senators. La Presse quotes him as saying that

[t]he Senate is like a grape that you leave out to dry on the vine. It’s not good any more after that. We’ll leave it out to dry, it will be over, and it won’t be there anymore. [Translation mine]

Mr. Mulcair is, supposedly, “determined to work with all of the provinces on the Senate’s abolition,” and firmly set on never appointing Senators ever. As for Stephen Harper, he has not, to my knowledge, foreclosed the possibility of doing so if he wins the next election, but is also apparently uninterested in filling out the current 16 vacancies in the Senate until then. A Vancouver lawyer, Aniz Alani, has launched a lawsuit, apparently claiming that failure to appoint Senators is an infringement of section 32 of the Constitution Act, 1867, which provides that “[w]hen a Vacancy happens in the Senate … the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.”

The legal merits of this claim, Mr. Alani’s standing to bring it and, most of all, its justiciability all make for very interesting questions, and I might yet return to them. For now though, perhaps as a result of consuming too much alcohol as part of New Year’s celebrations, I want to suggest a different, crazier, remedy. Arguably, at some point, if the Prime Minister fails to advise the Governor General to summon new Senators, the Governor General should just do it himself, without waiting for advice that he knows will not come.

Regardless of the availability of legal remedies for its breach, section 32 of the Constitution Act, 1867 clearly imposes a responsibility on the Governor General, since it uses the imperative “shall” (instead, for example, of the permissive “may”). Constitutional conventions dictate that the Governor General discharges this responsibility, and similar ones (for example for appointing judges) only pursuant to the ministerial advice. As the Supreme Court recently explained in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704,

constitutional convention requires the Governor General to follow the recommendations of the Prime Minister of Canada when filling Senate vacancies. [50]

Conversely, so long as he has received no recommendation from the Prime Minister, the Governor General may not fill such vacancies. Yet that prohibition arguably presupposes that the Prime Minister will in fact act to advise the Governor General to appoint some “fit and qualified person” to fill the vacant Senate seat. What if the Prime Minister has made it clear that he will not do so?

In the Senate Reform Reference, the Supreme Court recognized that the Senate, disliked though it is by many Canadians, has a number of important functions. It is “a complementary legislative body of ‘sober second thought'” [56], in addition to providing representation for Canadian regions and “various groups that were under-represented in the House of Commons,” notably “ethnic, gender, religious, linguistic, and Aboriginal groups” [16]. It stands to reason that the shorter the Senate is of its full complement, the less effectively it can fulfill these roles.

Still in the Senate Reform Reference, the Court took the position that a course of action that would “weaken the Senate’s role of sober second thought” [60] would amount to a constitutional amendment, even though it did not modify the constitutional text. Arguably, the course of action at issue there, the enactment of (federal and, possibly, provincial) legislation that would set up purportedly “consultative” elections of Senators, would have had a clearer effect than a gradual reduction in the number of Senators. Then again, that effect too would only have been achieved gradually, as elected members would slowly have replaced appointed ones.

In any case, even if the difference might matter from a strictly legal perspective, I do not think that it does from a political one, which is what interests me here. There can be political remedies, as well as ― and even instead of ― legal ones when the government acts in violation of the constitution. Most obviously, of course, the government can be voted out of office. But that’s not the only possibility. As the Supreme Court pointed out in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, if a government refuses to resign after losing a general election, “the Governor General … would be justified in dismissing the ministry and in calling on the opposition to form the government.” (882) This is an extreme case, because the ministry’s behaviour would be “a fundamental breach of convention, one so serious indeed that it could be regarded as tantamount to a coup d’état.” (882) Failure to appoint Senators is surely a less serious matter. (Though consider what happens when the Senate dwindles below its quorum, and no statutes can pass Parliament at all ― something that may conceivably happen under Mr. Mulcair’s approach, if he is unable to goad the provinces into agreeing on abolition before then.)

Short of such a dramatic step, I would like to suggest that, faced with a cabinet and a Prime Minister determined on acting in clear, if perhaps not legally sanctionable, defiance of the constitution, the Governor General may be wise to break the convention that requires him to appoint Senators only on the advice of the Prime Minister. Yes, breaking the convention is also acting in defiance of the constitution, even though this step may not be amenable to a legal remedy. But, unlike the temper tantrum of a Prime Minister who refuses to replenish the Senate simply because he does not like the way this institution operates under the existing constitution or because he does not want to attract attention his record of questionable appointments, it is a constitutional violation intended, and arguably necessary, to prevent another such violation.

Indeed, substantively, it might be a very positive step for the Senate and for Canada. The Governor General would be free from the partisan incentives that have too often prevented Prime Ministers from appointing Senators capable of providing genuine “sober second thought,” and thus might help the Senate fulfill its role as a complementary legislative chamber. Senators appointed not by an elected official but by a person who is himself an appointee would not have the problematic legitimacy to oppose the democratic will of the House of Commons, yet they would be more likely to have the capacity for independent thought which partisan hacks too often lack. They would offer a counterargument, but not a counterweight, to the House of Commons, which I think was exactly what the Senate was originally meant to do.

To be sure, even if it were to bring about a desirable result, a vice-regal assertion of independent power would be troubling and problematic. If I’m not the only one to think that this idea even deserves some thought, that would be strong evidence of something being rotten in the state of our democracy. But I for one do smell rot, when I hear the Prime Minister and the man who would be Prime Minister set out on a course of disregarding both our Parliamentary institutions and our constitution itself not only apparently without questioning the constitutional propriety of such a course, but indeed suggesting that it is the right thing to do.

UPDATE: Philippe Lagassé has pointed out to me that, pursuant to section 4 of the Federal Documents Regulation, a Senator’s commission must be signed by the Registrar ― who also happens to be a cabinet minister (specifically, Industry Minister, as prof. Lagassé explains). So presumably a defiant Governor General couldn’t just act on his own ― the Registrar would not go along. The constitutionality of this regulation, insofar as it interferes with the Governor General’s execution of the powers of his office might be questionable, but there it is. And, of course, in reality, a Prime Minister can always give the Queen a call and have her fire a defiant viceroy. In short, as Paul Wells tweeted, “the Governor General won’t help you.” And yet…