Questionable Limits

Jim Prentice, the leader of Alberta’s Progressive Conservative Party (and would-be Premier), has proposed limiting the time provincial politicians can serve in office. Members of the legislature would be limited to three terms; the premier to (an additional?) three. The wisdom of this proposal has been much criticized. (Aaron Wherry, of Maclean’s, a critic himself, has links in this article.) Its constitutionality is also questionable.

As the thoughtful MP Brent Rathgeber points out in a blog post, section 3 of the Charter protects every citizen’s right to stand for election to a legislature; and “[n]otice,” he adds, “it says ‘every citizen of Canada’ not every citizen ‘who has not already completed three terms in the legislative assembly.'” The unconstitutionality of legislative term limits might not be so free from doubt as Mr. Rathgeber makes it out to be, since an infringement of s. 3 of the Charter can, in theory, still be justified under s. 1. (Eric Adams argues  that this one could not be, but without much of an explanation.) I might come back to this in a later post.

For now, however, I want to focus on another point Mr. Rathgeber makes, which is that

[p]roposed term limits for serving as the premier, however, are trickier, at least constitutionally. Section 3 provides only constitutional protection for seeking a seat in the assembly, not for being asked to serve in the executive. As our premier is chosen by the Lieutenant Governor to serve, provided he has the confidence of the elected assembly, I suspect term limits for premiers, similar to those imposed on US Presidents and some Governors, may very well survive a Charter challenge.

That may indeed be so, although again the matter is not so clear, because the voters’ s. 3 right to “effective political participation” might have to be considered in a Charter analysis of executive term limits. (On the other hand, formally at least, it is not the voters who choose members of the executive, so it’s not clear that this argument can go very far.) But be that as it may, there is another argument against the constitutionality of executive terms, which may not involve the Charter at all.

Rather, the constitutional issue with executive term limits is that appointing a Premier is a power of “the office of … the Lieutenant Governor of a province,” which par. 41(a) of the Constitution Act, 1982 protects from amendment except by the unanimous consent of the provinces and Parliament. Appointing the Premier is one of the very few things, if not the only thing, that the Lieutenant-Governor does on his own, without taking anyone’s advice. Of course, convention dictates the way in which he exercises this power (he must appoint the person most likely to obtain the confidence of the legislature ― which usually, but not necessarily, means the leader of the largest party in the legislature). But the power is the Lieutenant-Governor’s all the same, and sometimes (notably, after the election of a legislature in which no party has a majority) he may have to use his own judgment in exercising it. A statute that provides that a person cannot serve as Premier is a limit on the Lieutenant-Governor’s ability to exercise this power, and thus, logically, a modification of his “office.”

It is useful to recall here something that Lord Sankey said in the famous “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124. It is not true, says the great constitutional horticulturalist, that

their Lordships [are] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one, either male or female, has a right to be summoned to the Senate. The real point at issue is whether the Governor General has a right to summon women to the Senate.

In the context of that case, it sounds implausible (I have myself said that “His Lordship, one is rather tempted to think, protests too much”) but, legally, that’s quite right. And, just as no one has a right to be summoned to the Senate, but the Governor General ― or, by convention, the Prime Minister ― has (so the Privy Council concluded in Edwards) the right to summon women to the Senate, so while no one has a (Charter) right to be asked by the Lieutenant-Governor to serve as a Premier, the Lieutenant-Governor has a right to ask the person of his choice to serve as Premier.

The legislation imposing term limits could, however, be designed to operate in a way that would attempt to circumvent this constitutional prohibition. Instead of directly prohibiting a person from serving as Premier for a third term, it would have to prohibit political parties from having a two-term Premier as a leader. One could then argue that the Lieutenant-Governor’s choice is not impaired by that statute, but rather by the convention that requires him to appoint a party leader as Premier. Whether this argument would be accepted by courts is not clear, however.

If they stick to an orthodox understanding of the law, which excludes constitutional conventions and thus acknowledges no limits on the Lieutenant-Governor’s powers, they might see such a law as an attempt to do indirectly what cannot be done directly, and invalidate it on that basis. If however, they take something like the approach Fabien Gélinas and I have suggested in our paper on Senate reform, on which the office of the Lieutenant-Governor (as well as any other term in the constitutional text) must be understood with reference to conventions, they should probably accept that this approach does not actually limit the Lieutenant-Governor’s powers, since conventions already limit them to choosing among the leaders of the parties in the legislature, and give him no say in who those leaders are. Unfortunately, despite having the opportunity to do so in Reference re Senate Reform, 2014 SCC 32, the Supreme Court has not really made it clear which of these approaches is correct. Instead, it relied on an obscure notion of “constitutional architecture” which in my view may well include some, but perhaps not all, conventions. Do executive term limits interfere with the “constitutional architecture” as it relates to “the office of the Lieutenant-Governor”? Your guess is as good as mine.

However, even if a law imposing executive term limits by prohibiting parties from having long-term premiers as leaders could survive a challenge based on par. 41(a) of the Constitution Act, 1982, it would probably be an infringement with the parties’ rights under s. 3 of the Charter. An individual may have no constitutional right to serve in the executive, but a party is free to decide how many candidates to present (so the Supreme Court held in Figueroa v. Canada (Attorney-General), 2003 SCC 37, [2003] 1 SCR 912), it arguably also has the right to decide what candidates to present, and which of them to make its leader. Again, a s. 1 justification would theoretically be possible, but it would not be easy.

The constitutionality of executive term limits thus is, at best, highly questionable. But it would be better for all if it were never tested in court. As others have amply shown, term limits are a bad idea, and even if I am wrong and they constitutional, there is no point in trying to impose them. About that, there is no question at all in my mind.

2 thoughts on “Questionable Limits

  1. There is some support for the idea that the now repealed section 92(1) of the Constitution Act, 1867 (and by extension, section 41(a) of the Constitution Act, 1982) protects the Lieutenant Governor’s powers in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2.

    At para 108, Beetz J concluded: “Thus, it is uncertain, to say the least, that a province could touch upon the power of the Lieutenant‑Governor to dissolve the legislature, or his power to appoint and dismiss ministers, without unconstitutionally touching his office itself. It may very well be that the principle of responsible government could, to the extent that it depends on those important royal powers, be entrenched to a substantial extent.”

    As I read it, this suggests that terms limits could well be a change to Canada’s “constitutional architecture” under the Senate and Supreme Court References’ definition and thus require an amendment under the unanimity formula.

    • Agreed ― they could. But I’m not sure that term limits interfere with the “constitutional architecture” to the same degree as a modification of the principle of responsible government would. So long as the (hopelessly vague) Senate Reference is all we have, I think it’s at least arguable either way.

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