The opening salvos of Question Period today in the House of Commons were extremely revealing in terms of the political posturing that will undoubtedly begin as we move closer and closer to a general election. Notably absent from the House of Commons chamber during Question Period was Andrew Scheer, leader of the Conservative Party of Canada. However, Lisa Raitt opened up the portion of the parliamentary day on the topic of the carbon tax:
Mr. Speaker, yesterday the Prime Minister was asked a simple question, whether Canadians can expect to pay higher fuel prices with the carbon tax. His response was a bit jarring. He said, yes, and that is what Canadians expect because that is leadership.
What the Prime Minister views as leadership is literally terrifying to widows and single moms across this country. At the very least, they deserve to know one thing. How much will the carbon tax cost them?
The Prime Minister responded to the opposition benches on point but not without reaching to the previous Conservative government (without question exactly where the Conservatives can be defined as weak on the environment):
Mr. Speaker, the Conservatives are yet again demonstrating not just their tenuous relationship with the truth, but also with the understanding that we have to take good, clean action on carbon. After 10 long years of the Harper Conservatives doing absolutely nothing on the environment, the same Conservatives show that they just do not get it.
We are putting a price on carbon pollution because it will reduce emissions and drive growth in the right direction at the same time. While Harper Conservatives believe that by making the economy and the environment work together and that somehow Canada is broken, we will continue to invest in clean technology.
Note how Prime Minister Justin Trudeau out and out calls the opposition Conservatives in this 42nd Parliament the “Harper Conservatives” despite the fact that Stephen Harper is no longer their leader. We can expect the Liberals to come out heavy linking the current caucus to the past and the fact that many front bench members are long in the tooth Conservatives from that era makes it a viable political tactic.
Lisa Raitt would not let the issue of the carbon tax go and rose again to follow-up on her first question:
Mr. Speaker, the Prime Minister’s lead ministers simply do not understand that they are very much out of touch with the reality of what’s happening and the gravity of the issue that we are speaking of. I remember the days, and a lot of us do, of being able to put just five bucks in the gas tank in order to get to my work at the Dairy Queen, and there are people like that today in my riding who experience that.
This is a serious matter that is going to affect the affordability of life for many Canadians. His government knows how much it costs. Why will he not tell them?
And Prime Minister Trudeau refused to hold back in evoking the name (and apparent puppet master abilities) of Prime Minister Stephen Harper:
Mr. Speaker, we have been putting in place practical, low-cost measures to tackle climate change and drive clean growth, including pricing pollution. It is clear that the Conservatives have no intention of taking climate change seriously and have no plan to promote clean growth in Canada. This is exactly the kind of inaction we saw in 10 years under Stephen Harper, who still very much apparently controls the backbench of the Conservative Party, and these Conservatives are no different. (emphasis added)
It is important to understand and worth mentioning that the linking of Stephen Harper to the current Conservative caucus is a test balloon at this point. The Trudeau Liberals have previously labelled Andrew Scheer “Stephen Harper with a smile” and that line and sentiment will be tested now by the Liberals to determine its strength going into an election campaign. It will be key to watch the polls, in particular the approval rates of Trudeau and Scheer to understand the impact of this tactic and whether or not it will be effective enough to be featured during the next election campaign.
There was a final exchange between Lisa Raitt and the Prime Minister over the carbon tax and again Trudeau linked the current caucus to the previous Conservative government:
The Harper Conservatives still demonstrate that they do not get it. They are stuck in what they were doing for 10 years. Canadians had enough.
It was another Conservative MP, Gérard Deltell, who asked the next question to the Prime Minister, the subject remained the carbon tax:
Mr. Speaker, I am pleased to repeat what I said because it is the truth and it comes from Natural Resources Canada. The Conservatives’ record from 2005 to 2015 is the following: a 2.2% reduction in greenhouse gas emissions and a 16.9% increase in GDP.
That is the Conservative record. We lowered greenhouse gas emissions and grew the economy. We did that without the Liberal carbon tax.
Why does the Prime Minister want to impose a tax on Canadians?
The Prime Minister did not step off message once in his reply:
Mr. Speaker, if these Conservatives want to run another campaign based on how well they did during the Harper years, I urge them to do so. Canadians rejected the approach of the Harper government, which presided over the worst record of economic growth since the Great Depression, was unable to create energy jobs in new markets, and failed to provide Canadians with the future they needed. Canadians made a choice: they rejected Harper and his Conservatives.
The Trudeau Liberal logic goes something like this: the current Conservative caucus is being run by Stephen Harper behind the scenes and their leader is no different than Stephen Harper (note how note once into QP at this point has Trudeau even mentioned Andrew Scheer), Canadians rejected Stephen Harper in the last election, therefore Canadians ought to reject the current Conservative caucus.
The issue of the carbon tax presents a perfect litmus test to begin determining the posturing that will develop as the election period encroaches. For the Conservatives, the issue is their bread and butter in terms of populism (everyone gets talking about the price of gasoline), plays to the geographical base and presents an opportunity to tap back into the 905 around Toronto. For the Liberals the carbon tax is their centerpiece environmental policy that they will hold up as taking real action on climate change in Canada (which is especially important given the mixed messaging of environmental stewardship from the Liberals coming out of the pipeline debates). It is also a great avenue to attack the previous Conservative government because of their quantifiable failure to act on environmental issues. It will be particularly interesting to watch the Liberals roll out their attempt to link the current Conservative caucus to Stephen Harper, whether or not it will be effective absolutely remains to be seen.
CBC News’ Sunday Scrum review the episode in the House of Commons on 10 May 17 wherein the opposition asked Prime Minister Justin Trudeau the same question 18 times and he replied in kind with the same answer each time.
Oral Questions, or Question Period as it has come to be unofficially called, is by far the most routinely watched and followed segment of the parliamentary day. It is during this daily 45 minute period that Members of Parliament are permitted to put oral questions to the government of the day and Ministers of the Crown are called upon to answer. Since Confederation, the period of time reserved for oral questions has evolved and now includes formal rules outlined in the Standing Orders of the House of Commons as well as through various Speaker Rulings throughout the history of the House of Commons. In this post we are going to examine the modern nature of oral questions, their historical significance and development over time.
Historical Development of Oral Questions
When Parliament first opened following Confederation, there were actually no provisions within the Standing Orders for oral questions. The only provisions for any sort of questions from MPs toward the government came in the form of written questions. Interestingly enough, the first recorded oral question took place without any formal guidance in place on 29 Nov 1867 (a full three weeks before any rules were formally written down, actually) when an oral question was posed to the Chairman of the Printing Committee. The inspiration for an oral question period came from the British House of Commons where the Prime Minister was subjected to questioning three times a week by MPs. It became a Canadianized practice during the legislatures of Upper and Lower Canada and eventually in the United Province of Canada prior to Confederation. It was not uncommon for MPs to put forward oral questions to Ministers of the Crown for urgent matters that required an answer within a timeline tighter than that of written question requirements. It was under this sentiment that Speaker Timothy Anglin made the first of a series of historical Speaker’s Rulings on oral questions when he said in 1878:
It is customary for hon. members to ask the Government for any special information between the various calls from the Chair for the day, before Notices of Motion or the Orders of the Day. I am not aware that any hon. member has a positive right even to do that; but I think he must confine himself entirely to asking the information from the Government, and he must not proceed to descant on the conduct of the Government.
But the 1940s a period of oral questioning had become an accepted part of the parliamentary day. However, there remained no official rules or guidelines covering their use and conduct. In 1944, the House procedures committee reviewed the practice of oral questions and concluded that it was “neither possible not advisable to do away with [oral questions].” However, the report from the committee was not accepted by the House of Commons and therefore was not actioned. This did not mean that oral questions went by the wayside, simply that the practise continued with little or no formal guidance in the Standing Orders of the House of Commons.
In 1964, the Speaker of the House of Commons attempted to enforce what was later viewed to be outdated rules concerning the conduct of oral questions and the formation of specific questions. This led to the formal codification of oral questions into the House of Commons Standing Orders. Thus Standing Order 37 was born which established a period of time for questions of an urgent nature to be put before the government. Under this new order, the Speaker had the power to determine that a question was not urgent enough to warrant an oral answer and could order the question sent to written questions. By 1975, a set timeframe for oral questions was established when a complete overhaul of the House of Commons routine business was conducted by the procedures committee. Since that time oral questions happen for 45 minutes each day at 2:15 pm EST Monday-Thursday and 11:15 am EST on Fridays, immediately following Statements by Members.
In 1974, Speaker Jerome established guidelines for questions during oral questions which were expanded and articulated in 1986 by Speaker Bosley. Bosley’s directions on oral questions remain the standard today for the conduct of this segment of business in the House of Commons. Speaker Bosley established four principles for the conduct of oral questions:
The time is scarce and should, therefore, be used as profitably as possible by as many as possible.
The public in large numbers do watch, and the House, recognizing that Question Period is often an intense time, should be on its best possible behaviour.
While there may be other purposes and ambitions involved in Question Period, its primary purpose must be the seeking of information from the Government and calling the Government to account for its actions.
Members should be given the greatest possible freedom in the putting of questions that is consistent with the other principles.
And adding to the ruling made by previous Speakers of the House of Commons, Bosley went on to articulate the principles, saying:
Mr. Speaker Jerome, in his statement 11 years ago, put his view with regard to the first principle of brevity so well that I would merely quote it:
“There can be no doubt that the greatest enemy of the Question Period is the Member who offends this most important principle. In putting the original question on any subject, a Member may require an explanatory remark, but there is no reason for such a preamble to exceed one, carefully drawn sentence.
“It is my proposal to ask all Hon. Members to pay close attention to this admonition and to bring them to order if they fail to do so. It bears repeating that the long preamble or long question takes an unfair share of the time, and invariably, in provoking the same kind of response, only compounds the difficulty.”
I agree with these comments and would add that such comments obviously also apply to answers by Ministers. I would also endorse Mr. Speaker Jerome’s view that supplementary questions should need no preambles; they should flow from the Minister’s response and be put in precise and direct terms without any prior statement or argument. It is the Chair’s view that it equally follows from the first principle, that time is scarce, that Members should seek to avoid merely repeating questions that have already been asked. I do not mean that other questions on the same subject should not be asked — as apparently I have been interpreted — just that subsequent questions should be other than ones already asked.
For similar reasons it has always been a fundamental rule of questioning Ministers that the subject matter of the question must fall within the collective responsibility of the Government or the individual responsibility of one of its Ministers. This is the only basis upon which Ministers can be expected to answer questions.
Beyond these few restrictions, there are a few other traditional restraints that flow from the principles above. Questions should relate to matters of some urgency and not be purely hypothetical. They should not seek a legal opinion or inquire as to what legal advice a Minister has received. They should not normally anticipate Orders of the Day. However, I hasten to add that there is normal exemption to that with regard to the budget process which I fully intend to honour. Members should be very careful with regard to questions or matters that are sub judice. Ministers should be questioned only in relation to their current portfolios and not in relation to any previously held responsibilities or Party responsibilities.
Since his ruling in 1986, Speaker Bosley remains the authority on determining the conduct of business during oral questions and has been cited by Speakers since as the foundation of our understanding of business during this segment of the parliamentary day.
The development of oral questions over time also saw the introduction of supplementary questions– or follow-up questions. Today, the standard is that one question is asked and then the member who posed the original question has up to three supplementary questions to ask. There is very little formal guidance for these supplemental questions but in 1997, Speaker Parent articulated in a ruling that supplementary questions should be related to the topic of the original question. This has become somewhat outdated with the current practice of having a different member rise to ask a supplemental question, and little formal direction has come out as of late from the Speaker’s Chair. It is not uncommon to see the Leader of the Official Opposition and the leader of each respective opposition party to take advantage of all three supplementary questions following their initial line of questioning on the government, and occasionally we see backbench members following up on their original questions.
Adjournment Proceedings or The Late Show
In 1964, the procedures committee implemented a new practice each day called Adjournment Proceedings. Essentially, it became a half hour period at the end of each day initiated by a motion to adjourn the House for the day under Standing Order 37(3). The idea was that members who were not completely satisfied with answers on a given topic would have a chance to bring up the issue one more time at the end of the day. Since that time, three topics are given notice during the day to the Speaker that will be brought up during the Adjournment Proceedings– or Late Show. These topics are typically follow up items from issues that have arisen during the day or week. Ministers of the Crown typically do not attend the Late Show, however it is not uncommon for Parliamentary Secretaries to spar and follow-up with MPs on issues that arose during oral questions earlier in the day. This proceeding coupled with question period and the odd opposition day are essential the only periods of House business that the opposition can control away from the government. They are therefore even more important in majority government situations (such as the current parliament) as they give the opposition a forum to bring issues of the day to light. Most Canadians are not aware of the connection between Oral Questions and Adjournment Proceedings and almost every major media outlet does not give the Adjournment Proceedings the same level of attention and coverage as Oral Questions.
Answers During Oral Questions
The old parliamentary adage goes that oral questions are called “question period and not answer period for a reason.” And there is a lot of truth to this statement. When answering questions a Minister of the Crown has a handful of options available to them:
answer the question;
defer their answer;
take the question as notice;
make a short explanation as to why they cannot furnish an answer at that time; or
Most of the time the Minister chooses to answer the question, or if you were to ask the opposition, they chose to speak to the question, rather than give an answer. It has come up often times throughout any discussion on oral questions that there are virtually no mechanisms available to the Speaker to ensure that questions are answered. This was put on a fantastic show during the previous session of parliament when the Parliamentary Secretary to then Prime Minister Stephen Harper, Paul Calandra, refused to answer a direct question from the NDP and instead spoke about issues in the middle east. The NDP was out of line for pleading for the Parliamentary Secretary to answer the question at hand, and the Speaker was left powerless to watch the House devolve into a circus as a result of Calandra’s poor answers. In the end, he apologized to the House and all was made well but not before an attempt was made by the opposition to have the Speaker rule that answers should have substance. In his ruling, Speaker Scheer outlined the guidelines handed down since 1867 and explained to the House the limits that the Speaker had in holding the government to account in answering questions to the satisfaction of the opposition. And with that statement he hit the crux of the issue on the head; by what metric would a Speaker determine that a question has been adequately answered? If the opposition is the benchmark, in other words a question if answered only when the opposition is happy with it, than we are entering into the realm of political and the debate of facts, which is not the place of the Speaker to determine but of the whole House.
There is little in the way of guidance for answers however the following three principles have arisen out of Speaker’s Rulings on the subject:
no particular Minister is compelled to answer a particular question, even if that question was directed to a particular Minister in the statement,
no MP can insist on the answer and no point of order can be raised on the grounds that a question was not answered satisfactorily
the content of answers is considered a debate about facts and thus within the realm of the entire House and not the Speaker to rule when is in order and out of order
Questions and answers in the House of Commons are subject to all other Standing Orders and Speaker’s Rulings, meaning that language must always be parliamentary in nature (cannot call someone a liar, for example) and questions must be directed to the Speaker and not individual members. Additionally, the following guidelines on what questions should not be asked have been established over time based on existing Standing Orders and past Speaker’s Rulings:
be a statement, representation, argument, or an expression of opinion;
seek an opinion, either legal or otherwise;
seek information which is secretive in its nature, such as Cabinet proceedings or advice given to the Crown by law officers;
reflect on the character or conduct of Chair Occupants, members of the House and of the Senate or members of the judiciary;
reflect on the Governor General;
refer to proceedings in the Senate;
refer to public statements by Ministers on matters not directly related to their departmental duties;
address a Minister’s former portfolio or any other presumed functions, such as party or regional political responsibilities;
be on a matter that is sub judice;
deal with the subject matter of a question of privilege previously raised, on which the Speaker reserved his decision;
make a charge by way of a preamble to a question;
be a question from a constituent;
seek information from a Minister of a purely personal nature;
request a detailed response which could be dealt with more appropriately as a written question placed on the Order Paper; or
concern internal party matters, or party or election expenses.
The inspiration of this post came from comments made by a Liberal Minister concerning questions related to the Liberal cash for access scandal currently before the government. There were significant questions on the subject during question period, and the Minister was commenting on the fact that the way she understood the guidelines, such questions were not in line (see: concern internal party matters, or party or election expenses, above). It could be argued however that the questions concerned the conduct of government, and not the Liberal party specifically.
As mentioned earlier, question period is the most watched and most engaging aspect of the parliamentary day. It’s importance within the Canadian political culture cannot be understated, however given it’s importance it is alarming how little the average Canadian knows about the conduct of question period. Opposition leaders are often measured in their capability within the job against their performance in the House of Commons, Ministers of the Crown conversely are measured in their capability through their answering and performance during question period. It is an essential element of our democracy in Canada.
You may have already noticed that bill C-1 and S-1 are not located anywhere in the Status of Government Legislation posts featured on this blog. There is actually a good and very interesting reason for this. In this post we will examine the practical purpose of bills C-1 and S-1 in each session of Parliament and briefly review the historical perspectives of these bills.
Each session of Parliament begins with the formal opening of said Parliament with a Speech from the Throne delivered by the Governor-General on behalf of the reigning Monarch (monarchs have delivered this speech in Canada on various occasions) in the Senate Chamber. However, before the session begins, before all of the MPs make the trek from the House of Commons to the Senate and before all of the Senators and Justices of the Supreme Court take their seats before a filled regal chair in the Senate Chamber the entire Parliament is summoned by the Governor-General on the advice of the Prime Minister. The summoning of Parliament is a formal requirement in accordance with our constitution and established conventions on the opening of a session of parliament. The Summons itself is a Crown prerogative that on convention is exercised on the advice of the Prime Minister and is the literal formation of a particular Parliament by the Crown-in-Canada. This fact is important, the formation of our democratically elected House of Commons and appointed Senate into a particular Parliament with all of the powers, authorities and privileges required to conduct the democratic will of Canadians is rested upon the ordering of certain persons to Ottawa by the Crown. The glaring authority of the Crown in the formation of Parliament is made obvious in the direction the Crown gives to the Usher of the Black Rod to collect Members of Parliament from the House of Commons and summon them, on their feet before the Bar of the Senate, to listen to the Crown’s priorities and objectives for the government and the upcoming parliamentary session.
At the end of the Speech from the Throne, MPs return to the House of Commons and Senators continue business in the Senate. In the House of Commons bill C-1 is normally proposed by the Prime Minister and is titled An Act respecting the Administration of Oaths of Office. In the Senate, bill S-1 is proposed by the Senator representing the Government and is titled An Act relating to Railways. Each bill is considered to be pro forma, in that their mere form represents the historical purpose of the proposed legislation. Each is given a first reading and then is never moved again. And each bill has nothing to do with the title, in fact in recent times the bill itself it not even printed or published. But they are arguably the most important pieces of legislation in each session of parliament. These bills represent the automous nature of Parliament and specifically of each House of parliament. Regardless of what reason the Crown gives in the Senate during the Speech from the Throne for why the Parliament has been summoned and regardless of what priorities the Crown has established for the Government, both Houses assert their independence and ability to set their own business. Without these bills, the Houses may be compelled to conduct only business strictly related to that outlined in the Speech from the Throne, or at least historically that would have been the case.
Each bill is a carry over practice from the British Parliament. In the UK, each session of Parliament begins with the presentation of the Speech from the Throne (albeit with the actual reigning Monarch) and when MPs return to the House of Commons, the government presents C-1, the Outlawries Bill. Like our own C-1 and S-1, the bill is read a first time and then never again dispensed with during the session. Rarely is the bill printed today. And just like the Canadian custom, the bill signifies the independence of Parliament from the Crown. During a review of House of Commons practice in 2002, the Procedure Committee reviewed the practice and determined that it had historical significance with little impact on other business and therefore had no reason to be removed from practice.
You will not see bill C-1 and bill S-1 on the Status of Government Legislation series on this blog because there is little reason to list it constantly in Second Reading in the House of Commons and the Senate respectively. However, that does not undermine their importance. Bills C-1 and S-1 are a constant reminder of the independence of parliament and the democratic authority that we mandate to our elected representatives in Ottawa. Their importance in a free and democratic society cannot be overstated.
Canadians from coast to coast to coast will soon be receiving a shiny postcard in the mail from the Government of Canada inviting them to participate in a new online survey on electoral reform that the Liberals are calling MyDemocracy.ca. The purpose of the new survey, according to Minister of Democratic Institutions Maryam Monsef, is to engage all Canadians on the issue of electoral reform and to gauge the public desire for the kind of change the government should seek regarding electoral reform. During her brief interview on The Agenda with Steve Paiken last week, the minister explained that several Canadians were unable to attend the ERRE committee meetings that were held in every province and territory in Canada and specifically mentioned rural Canadians who did not have a chance to get out to meetings that were more often than not conducted in large urban centres.
On the face of it, there should be no issue with the government in our modern digital age drafting and sending out an online survey to gauge public opinion on any given issue, the problem here comes from the fact that we have already had an all-party parliamentary committee review the issue and engage Canadians and they submitted a report that was well over 300-pages that provided recommendations to the House of Commons on moving forward on this issue. But the report did not detail what the government secretly wants for electoral reform, specifically that there be no national referendum on the issue and that a ranked ballot PR system form the way ahead in Canada (the Liberals support a ranked ballot system because as the traditional centre party, they will almost always capture run-off second and third choice votes). The NDP has been pushing for a RP system for quite some time, as have the Greens and the Conservatives maintain that any changes to our electoral system required a mandate directly from Canadians in the form of a referendum on the question. The report from the ERRE committee was a product of the current lay of the land in the House of Commons, namely that the Conservatives as official opposition were able to secure the position in the report that a referendum is probably the best way forward and the NDP and Greens both were able to secure a mention that PR was probably the best system to use in Canada. It is important to note that this current “lay of the land” in the House of Commons is the result of the democratic will of Canadians expressed in the previous general election that sent the Liberals to the government benches. These conclusions made Minister Monsef quite upset which lead her to outburst in the House of Commons, attacking the committee for not doing the work it was suppose to do. She later had to backtrack and apologize, but the damage was done. It was also one of the first times in recent memory that a majority government has submitted a minority report alongside a committee report in Parliament.
Monsef has stated that the government’s plan all along was to propose this survey to Canadians, which is mind-boggling because they allowed the ERRE committee to continue what was essentially parallel proceedings without once mentioning that they had a plan to do their own thing down the road. But it gets worse, Monsef was clear during her interview with Steve Paiken, that the government believes the positions outlined in the committee report do not reflect the will of Canadians and that the Liberals, somehow, have some greater insight into the electorate that requires going outside of parliament to get to the source of the concerns of Canadians. There are serious democratic implications for the position of her government, namely the richness of claiming that a report compiled by duly elected Members of Parliament somehow does not and cannot reflect the will of Canadians. Does she understand that such a statement is clearly laying bare the fact that this government does not in any way feel beholden to parliament on the issue? What makes electoral reform so different that the government is not required to have support in the House on the file?
I think that an easy way of understanding how the government is approaching the file can be articulated in an analogy of tree shaking. The Liberals stand around the tree of Canadian opinion and shake and shake and when an apple falls that is not to their own particular liking, for example that Canadians support a referendum on electoral reform, they shake and shake some more saying that “well, not everyone was consulted so we have a duty to ask again.” And when another apple that is not to their own liking falls again they put up their hands and say, “we are here to include all Canadians from all walks of life, and this tree is flawed, let’s try again to get their opinion.” And they shake and shake again until an apple of their liking has fallen to their feet all of the while coming up with vague and soft points on why the previous tree shaking was inferior to the next. Never minding the fact that Canadian taxpayers pay hundreds of millions of dollars to keep the institution of parliament running as a means of governing the country and expressing their will between election periods. We have a Liberal government that is committed to the people, and thus committed to circumnavigating parliament on this file— at least until the right apple falls.
Furthermore, the Liberals are becoming extremely dismissive with Canadians on the file. When questioned why her government did not include more specific questions on forms of electoral systems that could be implemented in Canada, Monsef explained that Canadians do not understand FPTP, MMP, PR and STV and that the issue was too complex and too technical to engage the majority of Canadians. I feel as if Minister Monsef might be projecting her own misunderstandings and difficulty comprehending our Canadian democracy and various electoral systems on to Canadians. At best it is government handling an electorate with kid gloves, at worse it is condescending and arrogant. Either way it does not make good politics for a government that is supposed to be sunny-ways and supportive. You cannot, with one side of you mouth, say that you value engagement and then criticize the quality of results from said engagement, that is double-speak. However, if Canadians are in fact not informed on this subject, it does start to beg the question of it’s importance to everyday Canadian at the moment. Is it possible that the government has created a mountain out of a mole hill here on electoral reform? Especially when we consider how many Canadians are currently out of work, how many are looking down the barrel of losing they jobs and how many young Canadians are fearful for employment in the future. Is electoral reform really something that the government should be pushing at the moment?
At the end of the day, Justin Trudeau made a promise to Canadians that the 2015 election would be the last under first-past-the-post in Canada, it is arguable whether or not this promise and his election victory earned his government a solid mandate to move forward on the file unilaterally. Conservative interim leader Rona Ambrose has handed the government an out in saying that they should drop 2019 as a goal line and should focus on more pressing issues in the country. I am inclined to agree with her, it is time for the Liberal government to drop electoral reform, at least during this current parliament.
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
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.
Members elected to form a new parliament following an election must meet within one year of the dissolution of the previous parliament. In the case of the recent election, parliament would have had to have met by 2 Aug 16. The Canadian Parliament is summoned by the Governor-General of Canada on the recommendation of the Prime Minister. The summons itself does not just occur following an election, it also happens following prorogation of parliament, however the mechanism remains the same with the Governor-General issuing the proclamation on the recommendation of the Prime Minister.
The 42nd Parliament of Canada was summoned by Governor-General David Johnston 13 Nov 15 for members retuned from the 42nd General Election to “appear in person, on Thursday, the third day of December, 2015, at one in the afternoon, at Our City of Ottawa, for the DISPATCH OF BUSINESS, to treat, do, act and conclude on those things that Our Parliament of Canada may, by the Grace of God, ordain” (Canada Gazette, 2015). This proclamation was issued on recommendation provided by Justin Trudeau who commands a Liberal majority in the House of Commons. Trudeau was summoned to form government on 20 October 2015 after the Governor-General had met with outgoing Prime Minister Stephen Harper who “signalled his intention to resign as prime minister” (Rideau Hall Press Release, 2015). On 4 November 2015, the Governor-General swore Justin Trudeau and his 30 person cabinet into office and the 29th Canadian Ministry had been formed.
Members who won seats in the House of Commons meanwhile take the Oath or Solemn Affirmation of Alliance and register on the Test Roll. Following an election, returns are made from the Chief Electoral Officer to the Clerk of the House of Commons that officially recognize a person as having won a certain electoral district in Canada. The notice is published in the Canada Gazette, an example of which can be found here. After notice is given, the members make the oath and sign the Test Roll before the Clerk at a time pre-arranged between the member and office of the Clerk or during a ceremony held prior to the opening of parliament (House of Commons Procedure and Practice 2nd Ed, 2009). The Clerk of the House of Commons issues the Oath or Solemn Affirmation of Allegiance and members sign the Test Roll at the Table of the House of Commons. From this point on, members are permitted to rise and speak in the House of Commons and cast a vote in questions put before it. Every member returned to the House in the previous election takes the oath and signs the Test Roll for each parliament formed following an election (House of Commons Compendium of Procedure, 2015). Thus, each Test Roll is unique to each Canadian Parliament.
Members who were appointed by the Governor-General on the recommendation of the Prime Minister to become members of the 29th Canadian Ministry and Privy Counsellors took an additional oath at Rideau Hall in the presence of the Governor-General. That oath reads as follows:
I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty’s Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty. So help me God. (Rideau Hall Swearing-in Ceremony Fact Sheet, 2015)
Additionally, Privy Counsellors and members of Trudeau’s cabinet who are not officially appointed Privy Counsellors (for example, Secretaries of State who assist certain Ministers) take the Oath of Office which reads:
I, _________, do solemnly and sincerely promise and swear (declare) that I will truly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as… So help me God. (Rideau Hall Swearing-in Ceremony Fact Sheet, 2015)
Members who do not wish to swear an oath may replace “swear” with “declare” and the phrase “so help me God” is removed.
The opening of the 42nd Parliament of Canada will immediately follow the summons which will include a Speech from the Throne delivered by Governor-General David Johnston in the Senate Chamber. We will explore that process in a later post.
Image: Prime Minister Justin Trudeau signing the Register after taking the Oath of Office. With Governor-General David Johnston. Source.
The wake of the 42nd General Canadian election the House of Commons has returned a majority Liberal government under the leadership of Justin Trudeau. As we discussed earlier, one of his first priorities is the appointment of the 29th Canadian Ministry and what will become the Liberal government cabinet (set to happen on 4 Nov 15 with a Swearing-in Ceremony at Rideau Hall). These collective appointments will become the executive arm of government, one of the most important parliamentary institutions, so let’s take a look at what goes into building a modern Canadian cabinet, and the procedure and law that surrounds its creation.
House of Commons Procedures and Practice 2nd Ed explains executive authority as “vested in the Sovereign and exercised by the Governor in Council.” It goes on to further explain that this authority is exercised “by and with the advice and consent of the Queen’s Privy Council for Canada; in practice, it is the Governor General acting with the advice and consent of the Prime Minister and Cabinet.” Privy Councillors are appointed by the Governor General on the advice of the Prime Minister and these appointees are styled “Honourable” for life (the Prime Minister being styled “Right Honourable” for life).
Although the terms “Ministry” and “Cabinet” are commonly used interchangeably, in fact a Ministry is composed of both Cabinet Ministers and Secretaries of State. Most Cabinet appointees are designated Ministers in charge of government departments (or ministries) although some may be given responsibility for an important policy portfolio. Secretaries of State are assigned to assist Cabinet Ministers in specific areas within their portfolios. They are members of the Ministry (sworn to the Privy Council) but not of Cabinet. In addition, the Parliament of Canada Act provides for the appointment of Parliamentary Secretaries (Members who assist Cabinet Ministers but who are not members of the Ministry). Finally, provision may be made for the appointment of an Acting Minister in the event a Minister is absent or incapacitated, or the office is vacant.
The appointments made in the formation of the Ministry and cabinet represent one of the most important decisions made by a governing Prime Minister. Justin Trudeau has an 184 member strong caucus from which to draw his Ministry and build a cabinet. He has already begun to inform Canadians on how he will approach the formation by the inclusion of 50/50 men and women and a reach out to aboriginal Canadians. Considering that the Liberal party swept through 4/5 Canadian regions, Trudeau will have a significant pool of people to draw experience and representation on his cabinet. House of Commons Procedure and Practice 2nd Ed explains the Prime Minister’s prerogative regarding the formation and composition of the cabinet:
A Prime Minister’s choice of Ministers is influenced by political considerations respecting, for example, geography, gender and ethnicity. However, the Prime Minister alone decides on the size of the Ministry and what constitutes an appropriate balance of representation.
The exact size of Canadian Ministries and cabinets have fluctuated and for the most part have grown over the course of Canada’s history. Pierre Trudeau remarked in his Memoirs in a caption for a photo showing his cabinet that the photo was from a “time when cabinets could fit around a single table.” In the featured image for this post, Prime Minister John Diefenbaker is seen with Her Majesty Queen Elizabeth II, Prince Philip, Governor General Vincent Massey and the entire 18th Canada Ministry (National Film Board of Canada, MG01/XVII/JGD438). The inline photo is from the swearing-in ceremony of the 28th Canadian Ministry chaired by Stephen Harper. You can see the significant difference in size and visible representation from 1957 to 2006.