Bills C-1 and S-1

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.

The Prime Minister proposed bill C-1 in the House of Commons. CBC News.
The Prime Minister proposes bill C-1 in the House of Commons following the Speech from the Throne. CBC News.

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.

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.

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Leadership Term Limits in Canada

An interesting question was raised by Samara Canada this morning over twitter:

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…without question something worth taking a look at, especially in light of recent rumours that Conservatives are looking to impose term limits on their leaders. Stephen Harper served as Prime Minister of Canada for nearly nine years after winning three elections as leader of the Conservative Party of Canada. However, he is not the longest serving prime minister in Canadian history, that honour rests with William Lyon Mackenzie King who served just over 21 years after winning six elections as leader of the Liberal Party of Canada. Four prime ministers in Canadian history have served mandates that were not consecutive, meaning they stayed on as leader of their party (or in one case, briefly retired) regardless of a general election loss from an incumbency position. Over half of Canadian prime ministers have served over 5 years in office and of those eleven, only one managed in with only a single mandate (the average number of mandate for that top half was two).

This picture of our head of government in Canada is in stark contrast to the United States which, through constitutional amendment, have limited the terms of their Presidents to two four year terms. The exception would be in time of great needs, for example a time of war, which has only occurred once in the history of that country. The argument articulated in the United States justifying term limits rests on an overall check and balance that limits the control of a powerful personality occupying the White House.

But there are also arguments against terms limits which are entirely valid. For example, it is argued that an eight year cycle of leadership results in short-sighted executive government. There is also an argument to be made about an executive formulated on a mandated short term against a legislature that can have members re-elected for an indefinite period of time, and the power imbalance which is created in such a situation.

We can debate the merits of term limits back and forth, but the fact remains that in Canada the office of the Prime Minister is not an official office within the structure of our executive and legislature. In fact, the title of Prime Minister is not used once in any constitutional document in Canada (same for in the United Kingdom). This is significant and there are important reasons why this apparent oversight is in fact intentional. Primarily, the prime minister of Canada is first and foremost a member of the legislature. This is a fundamental tenant of responsible government in Canada; the practice of executive members of the government being drawn from elected members of Parliament. This is in contrast to the government system in the United States where the head of state is separate from the legislature, not infused as in our British parliamentary model. In the US system, the President is directly accountable to the people, in Canada the prime minister is directly accountable to the House of Commons which is composed of members who are directly accountable to the people (which include the sitting PM directly as a member).

In the United States, the president is chosen in an election which is separate from that of the legislature. Each of the two major political parties have established primary systems designed to determine their respective candidate for the presidential election. It is all done separate from the mechanisms that support the election of the legislature. In Canada, the prime minister is chosen based on which party is able to establish and maintain the confidence of the House of Commons. Canadians play no role in choosing the prime minister aside from electing their respective member of Parliament. Our accountability of this system is based on the fact that the person chosen by our head of state (the Queen delegated to the Governor-General) will only come from the elected batch of members in the House of Commons. And the mechanisms of who goes forward from that batch is entirely based on partisan politics. We do not chose, as Canadians, who leads the various parties and thus has a chance of becoming Prime Minister. As members of the respective parties we may have a say, and the mechanism of that voice is determine through internal party constitutions and by-laws. A party could very well select a leader among only elected members of their own caucus (as was done in the United Kingdom for centuries).

In our current political system in Canada, it would be impossible and irresponsible to impose term limits on the prime minister. It would be terribly undemocratic to impose restrictions on who a group of Canadians formed as a political party can elected as their leader and for how long. Political parties themselves are free to impose limits on their leaders, and indeed can indirectly impose limits on the prime minister by having these limits internally. But there simply would be no statutory avenue for the legislature to establish law that would impose a limit on the prime minister without their being a limit within their own party.

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