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.

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