In Andrew Weaver a Politician is Born

An interesting thing happened during British Columbia’s 41st general election– a distinguished professor turned Green Party leader became a politician. Once pushed from the womb of academia and into the wild and wacky world of British Columbia politics, it did not take Andrew Weaver very long to get on his feet and undermine the government and the established parliamentary system while holding a meagre three seats in the legislature. This one is going to grow to be big and strong no doubt.

Let me be clear; I am not for one moment suggesting that a coalition, or as they call it, a supported-government, is undemocratic or unparliamentary. Quite the opposite, I would indeed be among the first to stand here and explain the intricacies and realities of our parliamentary system which permits such occurrences. And I believe in the parliamentary system and one that is sustained with a first past the post electoral system with ridings distrusted across the state according to relative population. And this is how we ended up with a result where the incumbent BC Liberals hold 43 seats (one seat shy of a majority sustainment), the BC NDP holds 41 and the BC Greens hold 3 (together enough to maintain the confidence of the legislature, if they worked together).

But besides permitting the BC NDP and BC Greens to work together in the legislature to form government and sustain confidence in the legislature, the parliamentary system has a host of other conventions that inform conduct in periods such as these. For example, the incumbency convention holds that no matter the results, the government in power gets first crack in the legislature to form government. This is why you see when a Prime Minister or Premier fail to garner a plurality of seats in the legislature they publicly resign from their office.  Otherwise, the GG or LG is compelled through the incumbency convention to allow the previous head of government first crack at getting confidence in the legislature. This is also why Premier Christy Clark is still the head of the BC government– and subsequently has the ability to deliver a Throne Speech regardless of the agreement came upon by the BC NDP and BC Greens.

When the results from the 41st general election in BC came down (and they took awhile to settle out and come down officially), it was clear that the BC Liberal Party did not have a majority of seats in the legislature, and thus would not be able to sustain their majority government. But they did have a plurality and because of the incumbency convention, they remained in power and Clark was invited to continue her ministry. Andrew Weaver proved his political stripes by undermining the incumbency convention and publicly siding with the BC NDP for four years. Without even hearing officially from the government via a Throne Speech in the legislature, Weaver and two of the Green Party MLAs decided that there was absolutely nothing the government could offer to gain their support. Andrew Weaver is now playing a political game, and very dangerous one at that. Tying himself to the NDP could surely prove to undermine an honest effort by the BC Greens to pitch themselves as not too extreme to form government, or in this case, at least hold the balance of power.

But what of backroom deals and talks? Dispense with them! They are not parliament and any idea that “ratifying” them by each caucus someone seals the deal is false, pure and simple. Those are not binding on the state, and rightfully so; parliament is the official forum of the electors. We saw that when Harper, Layton and Duceppe signed an agreement when they tried to undermine the Martin ministry– it meant nothing without parliamentary action to take down the government. And furthermore when Dion, Layton and Duceppe attempted to undermine the Harper ministry– it certainly did not withhold the authority of the PM to prorogue parliament to avoid actually sealing the deal. The NDP at least have the cover of their role as the Official Opposition to claim a reason to oppose the government at all turns– I concede that opposition is just as important as government in a parliamentary system. But the BC Greens ought to have sustained the Clark government, at least to the Throne Speech in order to sustain the incumbency convention and demonstrate their respect for parliament.

A true politician was born during this election. It will be interesting to see him fumble through his teenage years with his seemingly new best friend in John Horgan.

Constitutional Conventions

The recent nomination of Justice Rowe and the new approach that the Liberal government has taken to the appointment of members of the Supreme Court of Canada has invoked a lot of discussion around constitutional conventions. In this post we are going to examine the nature and usage of constitutional conventions in Canada with an eye toward their historical development.

Our Constitution: Written and Unwritten

From a legal perspective, the constitution of Canada does not encompass any one or two documents but a host of documents spanning from the Royal Proclamation, 1762 to the Canada Act, 1982 (the latter of which repatriated our constitution from the United Kingdom and established the Charter of Rights and Freedoms). The Constitution Act, 1982 provides for a list of documents to be considered as “constitutional documents” including the Canada Act, 1982 and the Constitution Act, 1867. However, the Supreme Court has maintained that several pre-Confederation acts (include the Quebec Act, 1774) and other acts (provisions of the Elections Canada Act, for example) ought to be considered with similar weight as specifically listed documents in the schedule of the Constitution Act, 1982. It is worth noting that even in the application and understanding of what documents ought to be considered of a constitutional nature and what documents should not includes forces from both the written and unwritten (or blended) parts of our state structure.

The preamble of the Constitution Act, 1867 calls for a parliament similar in nature to that of the United Kingdom. Ironically, writing down such a provision within a document to be considered the new country’s constitution was actually a departure from British parliamentary tradition. In the United Kingdom, the constitution is entirely unwritten and only recently have written documents such as provisions for the devolvement of state powers within the realm been given the weight of the unwritten provisions of the constitution (similar to how we have arranged ourselves in Canada). At any rate, however, the Dominion of Canada was founded on the premise that the state and the government within parliament be executed in similar fashion to that of the Mother Parliament. For this reason, unwritten provisions of our constitutional fabric were adopted from the United Kingdom. Provisions such as the formation of government visa a vise a Prime Minister and cabinet and the inherent privilege of Members of Parliament, including Senators, in order to properly execute their functions as representatives of Canadians. None of these provisions are mentioned in any constitutional documents, and they did and do not have to be because Canada does function in similar nature to that of the United Kingdom and our early leaders understood how the government of the UK functioned (and if they slipped, the Queen’s Privy Council was not very far). This is markedly different from the positive law of the United States or, even more so, that of Germany. In those systems, it would be impossible to enforce unwritten rules because the entire structure of law is based on the premise that the law must be made clear for citizens. Which begs the question, why do we still have unwritten portions of our constitution?

Conventions: Constitutional Mortar

Lawyer Aziz Alani points out that the gov't is avoiding acknowledging the relevance of the convention concerning SCC appointments.
Lawyer Aziz Alani points out that the gov’t is avoiding acknowledging the relevance of the convention concerning SCC appointments.

There are serious advantages to having constitutional conventions and it can even be argued that no state truly functions without at least some unwritten portions of their governing documents. There are significant conventions which dictate the democratic nature of our government, such as the convention of responsible government which is executed when the Governor-General invites the leader with the plurality of seats in the House of Commons to form government and for the executive to be drawn from the ranks of parliamentarians (primarily the House of Commons). There are mundane conventions that keep the government running smoothly and, most importantly, predictably in the interest of Canadians. An easy way to understand the importance of conventions is to think of an agreement that you have made between you and a friend over a repayment of some money. You agree to pay your friend five dollars each week until your twenty dollar owed balanced in paid in full. You write down this agreement clearly and you both sign the document. What you did not include in the document was that weeks consider to start on Monday, you get paid on Thursdays so you expected to provide payment each Thursday and if you did not pay you would have to renegotiate a new agreement or your friend could ask for the full money back immediately. These unwritten understandings between you and your friend are similar to that of conventions within the formation of the state. They have a strong benefit in that they can be changed without having to reopen the original agreement (say, for example your employer starts to pay you on Monday rather than Thursday half way through the payment period). This is important in a national sense, especially in a federation, because grand agreements of the state (i.e. the constitutional documents) are usually agreed upon at a certain time and place and it would represent near-chaos to reopen discussion on amendments at a particular time (this is especially true in Canada given the Meech Lake and Charlottetown accords).

Constitutional conventions, interestingly enough, are not enforceable in the courts (although they will acknowledge their existence and function in our governing system). This is important. A key element of constitutional conventions is that they exist so long as the parties involved believe them to be relevant and applicable. Who these “parties” are can vary but will almost always include the government and the official opposition. Canada would be outraged if the Governor-General refused to invite the duly elected leader of the party with a plurality of seats in the House of Commons to form government. And this would not change the convention regardless of the fact that the Governor-General, by written law, has the right to appoint who-ever they wish to form government, it would incite a constitutional crisis on the merits of the violation of the convention. However, take for example the recent announcement of the Trudeau government to look beyond the regional convention pertaining to the appointment of members of the Supreme Court. This is a convention that the government claims is weak and has no relevance in Canada because it ought to be the most qualified (albeit and apparently functionally bilingual) candidate who should be selected. The convention could very well be changing before us, and this is how they do change, especially when the general public does not raise a stink about the issue being changed (and in this case they actually seem to strongly support the Trudeau government position in the Supreme Court matter).

The Inevitable Unwritten

An appropriate closing is the reflection and observation that it is impossible to truly have a pure written constitution with all functions of the government being entrenched in mandated law. There will always be agreements or what some might call “common sense” and “obvious” functions of the state and government that will go beyond what is written but will not violate it. Additionally, each provision of the constitution calling on a particular state actor to act would require unwritten elements regardless the nature of the conduct of this act. It would certainly be burdensome and inappropriate to list each and every aspect of a certain function of state within the constitution documents.

Photo credit.

Oath of Allegiance: An Historical Perspective

The Oath of Allegiance in Canada has a colourful history. Tracing its origins from the United Kingdom, the young British colonies that would eventually become Canada inherited deep European religious and social tensions that were reflected within the statutory oath of the particular time. In this post we will briefly explore the British roots of the oath of alligiance in Canada and we will trace the historical development of the modern oath.

A Snapshot of the Times: The Victorian Era British Oath

The first British North American colony to gain an elected assembly in what would become Canada was Nova Scotia. This historical body met for the first time in 1758 and, as a result of the fact that a Canadian law had not yet diverged from British statutory and common law, members swore the same oathes of office as MPs of the British parliament in London, England. At that time there were three oaths required of members who had gained elected office; “the oath of allegiance to the King, the oath of supremacy denouncing Catholicism and papal authority, and the oath of abjuration, repudiating all rights of James II and his descendants to the English Throne” (House of Commons Procedure and Practice 2nd Ed, 2009). Naturally, these oaths prevented Catholics and Jews from seeking elected office in the legislative assemblies of the British colonies. The cause of existence of each oath lay in a paranoid monarchy attempting to galvanize the Church of England against Papal authority. To some extent, these fears came with European settlers into the New World (even dipping toward modern times, for example the Kennedy campaign had to address his Catholic faith) but it is safe to conclude that the importance of personal religious faith was low to most British North American settlers. However, the English statutory requirement for the oaths remained and hence their introduction in immature legislative assemblies of British North America.

Prior to the establishment of elected legislative assemblies in North America, London passed the Popish Recusants Act of 1605 which established a new oath of allegiance establishing the spiritual authority of the English Crown. It read:

I, A.B., do truly and sincerely acknowledge, that our sovereign lord, King James, is lawful and rightful King and that the pope neither of himself nor by any authority of Church or See of Rome, or by any other means with any other, has any power to depose the king etc, or to authorize any foreign prince to invade him, or to give licence to any to bear arms, raise tumults, etc. Also I do swear that notwithstanding any sentence of excommunication or deprivation I will bear allegiance and true faith to his Majesty. And I do further swear that I do from my heart abhor, detest, and abjure, as impious and heretical this damnable doctrine and position,–that princes which be excommunicated by the pope may be deposed or murdered by their subjects or by any other whatsoever. And I do believe that the pope has no power to absolve me from this oath. I do swear according to the plain and common sense, and understanding of the same words. (King James VI and I and the Reunion of Christendom, 2000)

In addition to the oath of allegiance, elected members were required to swear the oath of supremacy (preventing Catholics from seeking office):

I, A. B., do utterly testify and declare in my conscience that the Queen’s Highness is the only supreme governor of this realm, and of all other her Highness’s dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the Queen’s Highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges and authorities granted or belonging to the Queen’s Highness, her heirs or successors, or united or annexed to the imperial crown of this realm. So help me God, and by the contents of this Book [the Bible]. (Life in Elizabethan England)

A third, and final, oath was required, the oath of abjuration (preventing Jews from seeking office):

I ..; Do abjure and renounce the Pope’s Supremacy and Authority over the Catholic Church in General, and over my self in Particular; And I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper, or in the Elements of Bread and Wine after Consecration thereof, by any Person whatsoever; And I do also believe, that there is not any Purgatory, Or that the consecrated Host, Crucifixes, or Images, ought to be worshipped, or that any worship is due unto any of them; And I also believe that Salvation cannot be Merited by Works, and all Doctrines in affirmation of the said Points; I do abjure and renounce, without any Equivocation, Mental Reservation, or secret Evasion whatsoever, taking the words by me spoken, according to the common and usual meaning of them. So help me God. (British History Online)

The Canadian Model: Nova Scotia and the Oaths of Office

When the first legislative assembly met, it had conducted business in similar fashion to that of the Mother Parliament, and thus the three oaths of office were a requirement in order for elected members to take their seats. The result was that Catholics and Jews who were unwilling to take the public oath (and most were) did not take their elected seats or otherwise did not bother with standing for election. At any rate, until 1789 Catholics and Jews were not permitted to vote in the British colonies and “Catholics were not permitted to sit in the Assembly without first taking the declaration against transubstantiation; Jews were also barred from sitting in the Assembly because of the oath of abjuration” (House of Commons Procedure and Practice 2nd Ed, 2009). All of the British colonies at one point had a policy which prevented Catholics and Jews from seeking officer and/or voting in the legislative assembly as a result of the oaths of office.

It was not until the capture of Quebec City that the British Crown began to review the requirement for the oaths of office and offered a concession to the Catholic majority in the former French colony. In 1774, “the Quebec Act provided, among other matters, that Roman Catholics no longer had to take the oath of supremacy, substituting an oath of allegiance, should they wish to assume public office. The oath of abjuration still prevented Jews from assuming public office” (House of Commons Procedure and Practice 2nd Ed, 2009).

In 1832, Lower Canada passed a law which gave Jews the same rights and privileges as other citizens, the first jurisdiction in the British Empire to do so. When the United Province of Canada was established, the provisions of the Constitutional Act, 1791 regarding the oath of allegiance were carried over into the Union Act, 1840. At Confederation, the requirement for members of the Senate, House of Commons and provincial legislative assemblies to swear an oath of allegiance was included in the Constitution Act, 1867. (House of Commons Procedure and Practice 2nd Ed, 2009)

The Modern Era: Canadian House of Commons

Regardless of the colourful past of the oaths of office in Canada which were inherited from our European parents, the Canadian House of Commons never had a discriminatory oath for Catholics or Jews. By 1867, and the passage of the British North America Act which established the Dominion of Canada among Upper Canada, Lower Canada and a handful of maritime colonies, the English parliament had departed from the practice of barring Catholics from office in North America. The legislative assemblies in turn broke down restrictions placed on people of the Jewish faith. A year after Confederation, the British parliament passed Promissory Oaths Act, 1868 which established a simple oath, void of references to religious faith. The oath read as follows:

I, (Insert full name), do swear that I will well and truly serve Her Majesty Queen Victoria in the office of (Insert office of). So help me God. (Promissory Oaths Act, 1868)

Conclusion: Why Have an Oath?

It would seem odd that we even have an oath of office given the struggle for human rights when looking in the past. But the reason for the oath is simple and it is contained within a clause of the Magna Carta:

Once the terms had been finalised on 19 June, the rebels again swore allegiance to King John. The later Bill of Rights (1689) included the Oath of Allegiance to the crown, which was required by Magna Carta to be taken by all crown servants and members of the judiciary. (British Library)

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Dissolution of the Ministry

Both section 5 of the Constitution Act, 1867 and section 4(1) of the Charter of Rights and Freedoms limit the duration of a Parliament to five years (with the exception of times of war or insurrection). These sections translate into a system of democracy whereby elections must happen at least every five years. However, typically elections happen at more regular intervals as the governor general is bound through constitutional convention to dissolve Parliament at the request of the prime minister. The prime minister themselves may resign his or her government at any time or is bound to seek dissolution from the governor general after a no confidence vote in the House of Commons. Furthermore, specific to the current election campaign, Parliament has bound itself to fixed election dates through a 2007 amendment to the Canada Elections Act which made provision for a general election “on the third Monday in October every four years.” (Note: even under the amendments, the convention for the prime minister to seek dissolution in the event of a loss of confidence stands).

The mechanism whereby a Parliament is dissolved is central to responsible government in Canada. The heart of a ministry is the cabinet which provides advice to the Sovereign, controls the public service, and remains collectively responsible to the legislature. Governments in Canada are appointed, not elected, and their membership is drawn from the legislature. This is fundamental in a system of responsible government. This appointment does not last for a set term but stands until the minister dies, resigns or is dismissed. The sections contained within our constitutional documents which provide for a dissolution every five years, binds the prime minister to resign the government and thus exercise one of the three conditions upon which a ministry comes to an end. The appointment cannot be made possible without the individual first being elected as a member of the legislature. Thus, the minister also has an individual responsibility to the House of Commons. It is generally accepted that a minister is responsible for their ministry and is accountable to Parliament for their actions while in power. This personal responsibility generally guides how and when a minister should resign and when and how it should be asked for by the legislature.

The overarching theme of ministerial responsibility is its collective nature. The formation of the ministry rests on the concept of a collection of people having the ability to command the confidence of the legislature. Its continued existence rests on its ability to pass legislation and measures within the House of Commons. And its dissolution comes about through collective resignation. It would be absurd to permit a government to continue to function within a democracy when it is unable to pass a budget measure or advance its mandate. The ministry can only continue to function after a loss of confidence within the House of Commons if it is sustained by the electorate in a general election.

Democracy demands that executive governments be elected by the people. This concept emphasizes the formation of a democratic government which can claim legitimate power within society. Key to this concept is the function of terminating a government in order to permit democratic elections and thus enable the formation of a representative government. Constitutional documents in Canada limit the extreme length of parliamentary terms to five years and through convention provide expectations for governments in the event of a loss of legitimate authority. This is the essence of responsible government. A democratic government must be responsible in its formation, execution and dissolution.

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Responsible Government

When Canada became a confederation of provinces of the British Empire, the Fathers of Confederation envisioned a system of government that was to be responsible in nature. This concept of a responsible government was not born  specifically out of the Confederation conferences, but rather was born out of decades of struggle between the provinces of Upper and Lower Canada as well as the United Province of Canada. Before we can understand what a responsible government look like in Parliament, one must understand the historical and legal concept of responsible government as a whole.

In broad political science terms the concept of responsible government states that Westminster democracies are accountable to Parliament. This is in contrast to a system where executive members of government are accountable to the monarch (often through an appointed representative).  In Canada, responsible government has been linked with the concept of self-government.  The idea  that functions of the executive, such as the administration of monetary bills, be conducted by members elected by citizens rather than elites appointed by the Governor-General.  The first executive Council of a Canadian colony to first achieve responsible government was in Nova Scotia on 2 February 1848. The government of Joseph Howe was formed by members of the elected legislature.  In the Province of Canada the structure of responsible government was put to the test under the strains of relations with French-Canadians from what was formerly Lower Canada.  These tensions became particularly evident in 1849 when the Rebellion Losses Bill was passed in the legislature. Despite having misgivings over the bill due to the fact that it had enraged English Canadians by compensating so-called rebels, the Governor-General, Lord Elgin, gave Royal Assent.  Regardless of the opposition of a large segment of Canadian society, the Governor-General gave way to the concept of responsible government.

In modern terms, responsible government in Canada manifests itself in several ways. First of all, members of the government are selected among elected members of Parliament. The person who selects these members is themselves selected among elected members of Parliament. This person is invited by the Governor-General as a result of them being able to form a government which could maintain the confidence of the legislature.  Once a government is formed in Canada responsible government is maintained through ministerial accountability to Parliament. What this means is that ministers are accountable for their actions before elected representatives. This has traditionally manifested itself in ministers making announcements within the House of Commons and subjecting them to scrutiny. The daily period reserved for Oral Questions in Parliament is also a manifestation of responsible government and ministerial accountability. Another aspect of responsible government while a government has been formed is that the Governor-General will not refuse to grant Royal Assent to legislation which is been duly read and ratified by Parliament. In order for a government in Canada to remain in power it must maintain the confidence of the House of Commons. That means that at any time during the ministry the government can face a motion of non-confidence which would trigger the resignation of said ministry (which may or may not lead to an election). There are also certain pieces of legislation which are considered matters of confidence in and of themselves, these include the annual budget and the Address in Reply to the Speech from the Throne which opens Parliament.

One can see with a simplified explanation of responsible government in Canada that it is possible that today we do not have responsible government. This potential fact is not unique to the ministry which is currently in power nor is it unique to the ministry directly before it. The alleged slide away from responsible government within our parliamentary system has been gradual and started when the Prime Minister’s Office established regional desks in the 1960s and began to take parliamentary responsibilities away from Members of Parliament. It has been assisted with the growth of the party apparatus away from a system of patronage and towards a system of concentrated control power. Again, this is not unique to any one ministry or any one party in Canada at this time. Members of Parliament are asserted no longer act as representatives for the people who elect them. There are no longer incentives in place for representatives to serve the interests of the people but there are rather strong incentives or Members of Parliament to bend to the wills of a select few in exchange for a piece of the consolidated power.