Canada's Parliament now appears to have returned to its pathetic "business-as-usual" mode in the aftermath of the inexcusable prorogation last December. This gives citizens the dubious privilege of contemplating the events of the past few months, and trying to learn the necessary lessons to help us prevent further subversion of our democracy.
As we shoulder this task, we are fortunate to be able to draw on the work of one of Canada's foremost and most popular experts on constitutional matters: Eugene Forsey. Widely recognized as an authority on the intricacies of parliamentary responsible government, the late Senator was also a lifelong political and social activist: a founding member of the League for Social Reconstruction and the CCF in the 1930s, a "trade union civil servant" with the Canadian Labour Congress for almost 30 years, and a supporter of progressive causes right up until his death in 1991.
Eugene Forsey was also my father. In the home where I grew up, political commentary was the stuff of supper-table conversation. Dad had a remarkable ability to explain complex questions in lively and accessible language, and was regularly consulted by the media, governments, and politicians of every stripe. It wasn't unusual for a family meal to be interrupted by a phone call from a journalist or a legislator asking him to explain or resolve some constitutional dispute.
But no matter how often he set the record straight, my father's struggle against political ignorance was an endless uphill battle. "I shall have to spend my declining years," he used to say, "compiling and debunking a collection of constitutional fairy tales. And it will have to be loose-leaf, because there's a new one every day."
Poor Dad! I wonder if he realized that his loose-leaf collection would need to be continued and expanded indefinitely. In the 18 years he's been gone, ignorance of Canada's system of government has proven to be a growth industry, involving the media, some academics, and many of the politicians themselves. There are too few truly knowledgeable constitutional voices being heard, and they are too often drowned out by a cacophony of foolishness and propaganda.
As a result, much if not most of what passes for fact these days on the subject of Parliament, minority government, prorogation, elections, and so on, is actually completely false. Worse yet, much of it is subversive of our Constitution and frankly dangerous to any possibility of good government.
If we are to recover our power as citizens and put an end to governments that act as despots and oppositions that play dead, a real understanding of our constitutional options will be essential. Canadians have a right to know the facts, to use the democratic tools our parliamentary system offers us. We must refuse to be hoodwinked into helplessness.
So, since Dad is no longer here to do it, I have pulled together an initial collection of ten of those "constitutional fairy tales" which relate directly to recent events and our current situation. I have responded to each one, citing relevant material from my father's writings. I hope this will serve as an antidote to some of the poisonous misinformation circulating out there.
Fairy Tale #1: that the possibility of the House of Commons voting non-confidence and defeating the government creates a "constitutional crisis."
The only "crisis" was--and is--a crisis of ignorance. Canadians need to know that our Constitution explicitly provides for a smooth and democratic transition of power in such a case.
"Parliamentary cabinet government is both responsible and responsive. If the House of Commons votes want of confidence in a Cabinet, that Cabinet must step down and make way for a new government (normally the Official Opposition) or call an election right away so the people can decide which party will govern." (Eugene Forsey, How Canadians Govern Themselves)
Fairy Tale #2: that if the Opposition actively opposes the government's program, Parliament is "not working," is "dysfunctional."
The truth is the exact opposite. It is the Opposition's democratic duty to oppose and try to stop or change any government measures it believes are not in the best interests of Canadians. An Opposition that turns away and allows bad legislation to pass is guilty of a shameful abdication of responsibility.
"Parliament is not just a voting place. It is also, pre-eminently, essentially, a talking place, a 'parlement'... Parliamentary government is not just a matter of counting heads instead of breaking them. It is also a matter of using them. It is government by discussion, not just by majority vote."
"[Opposition] parties also get public money for research. Why? Because we want criticism, we want watchfulness, we want the possibility of an effective alternative government if we are displeased with the one we have." (Eugene Forsey, How Canadians Govern Themselves)
Fairy Tale #3: that if a minority government runs into active opposition in the House of Commons, with the possibility of being defeated in a confidence vote, then the nation's business is at a standstill and a new election is necessary.
This is hogwash. Minority governments are by definition minorities; they cannot govern like majorities. Minority governments must govern by negotiating and working cooperatively with opposition parties to create policies that a majority of MPs will support.
"When a government knows it may be hanged in a fortnight, the knowledge may broaden its mind wonderfully. Having to get support from outside its own party may not only help a government to do good and sensible things, but also prevent it from doing bad and foolish things." (Eugene Forsey, "The Problem of 'Minority Government' in Canada")
Fairy Tale #4: that if a government is defeated in the House of Commons on a matter of confidence, this automatically means a fresh election.
Wrong. If this happens in certain circumstances, especially early in the existence of a new Parliament, the Governor-General can call on the Leader of the Opposition to form an alternative government and seek the support of the recently elected House.
"If a Cabinet is defeated in the House of Commons on a motion of censure or want of confidence, the Cabinet must either resign (the Governor-General will then ask the Leader of the Opposition to form a new Cabinet) or ask for a dissolution of Parliament and a fresh election." (Eugene Forsey, How Canadians Govern Themselves)
"We shall certainly have to get rid of the notion that every defeat in the House means a fresh election... Elections are not picnics... [They] are held to choose a Parliament to transact public business, and Parliament should transact that business until it becomes unable to do so, or until some great new issue arises on which it is imperative to consult the people, or until the Parliament's utility is exhausted by the efflux of time." (Eugene Forsey, "The Problem of 'Minority Government' in Canada")
Fairy Tale #5: that such a change of government by majority vote in a duly elected Parliament is undemocratic, a "seizure of power," or a "coup."
Not at all. The essence of our system of "responsible government" is that the Cabinet is directly answerable to the elected House of Commons. Our elected Members of Parliament decide, every time they vote, whether the government stays in office or not. What is undemocratic is a government that tries to hold on to power regardless, when its support in the House of Commons is lost or threatened.
(A Governor-General to a Prime Minister): "Responsible cabinet government means government by a cabinet with a majority in the House of Commons. I don’t know whether you have such a majority. No one knows. The only way to find out is by summoning Parliament and letting it vote. It is not for me to decide who shall form the government. But it is for the House of Commons. " (Eugene Forsey, "Position of the Governor-General if No Party gets a Clear Majority in the Election")
Fairy Tale #6: that the imminent prospect of a non-confidence vote justifies the shutting down of Parliament through prorogation or dissolution.
On the contrary. The elected House of Commons must always be allowed to vote, and to do so without delay. Even if a Prime Minister advises the Governor-General to suspend the democratic functioning of Parliament by proroguing or dissolving it, the Governor-General has the "reserve power" to refuse advice that undermines constitutional principles.
(A Governor-General to a Prime Minister): "I cannot allow you to prevent the House of Commons from performing its most essential function. To permit you to do that would be to subvert the Constitution. I cannot allow you to usurp the rights of the House of Commons." (Eugene Forsey, "Position of the Governor-General if No Party Gets a Clear Majority in the Election")
Fairy Tale #7: that if a non-confidence vote is imminent, the Governor-General should grant a Prime Minister's request to prorogue Parliament or dissolve it and hold an election.
Absolutely not. In fact, that request by Stephen Harper was an attack on the very basis of parliamentary government. Only one other Canadian Prime Minister in the past hundred years ever had the audacity to attempt such a thing: Mackenzie King in 1926, when he asked Lord Byng to dissolve Parliament while a motion of censure was pending.
"[Mackenzie King's request] was tantamount to allowing a prisoner to discharge the jury by which he was being tried... If the Governor-General had granted the request, he would have become an accomplice in a flagrant act of contempt for Parliament." (Eugene Forsey, "Mr. King, Parliament, the Constitution and Labour Policy," Canadian Forum, Jan. 1942)
"The only protection against such conduct is the reserve power of the Crown, the Governor-General, to refuse such prorogation or dissolution, and, if necessary, to dismiss the government which advised such prorogation or dissolution." (Eugene Forsey, "Position of the Governor General if No Party gets a Clear Majority in the Election")
Fairy Tale #8: that the Governor-General's option to refuse a dissolution (and call on the Opposition to form a government) expires a certain number of calendar months after an election.
There is no set period after which that option expires. The MPs elected in October 2008, when the economic crisis became the main election issue, were deprived of their opportunity to respond to the government's actions; the new Parliament was in session for less than 13 days before its democratic functioning was suspended by prorogation. In parliamentary terms, the election was exactly as recent on January 27th 2009 as it was on December 4th 2008. It would be wrong to suggest, a few months into this new session, that too much time has passed since the last election for the Governor-General to refuse a dissolution.
"In a Parliament which is recently elected, if one government cannot carry on with the existing House, and an alternative government is possible, and there is no great new issue of public policy, then the government which cannot carry on should resign and make way for one that can." (Eugene Forsey, "The Problem of 'Minority Government' in Canada")
Fairy Tale #9: that minority governments cannot provide stability or good government, that "stability" and "efficiency" are the highest political values, and that therefore the purpose of elections is to produce a majority government.
None of the above is true. Numerous provincial and federal minority governments have lasted for years, and some, like the Pearson government in the 1960s, are noted for the positive and far-reaching measures, such as Medicare, which they put in place.
"The official theory... has seemed to be that elections are held to give some party a clear majority, and that if one election does not do it, there must be another at the earliest possible moment. The electors have just done their sum wrong and must be made to do it over again until they get it right... We may have to learn to live with minority government. It may have certain inconveniences. It will certainly be nerve-wracking at times. But it may turn out to give us quite tolerable or even very good legislation and administration...A government with a clear majority may go lickety-split in the wrong direction. A government without a clear majority is more likely to stop, look and listen... Minority government can be not a 'problem' but an opportunity, not a threat but a promise..." (Eugene Forsey, "The Problem of 'Minority Government' in Canada")
Fairy Tale #10: that a coalition cannot legitimately govern unless the parties explicitly campaigned as a coalition in the preceding election.
Representative government means we elect our representatives to make decisions about governing. If an election gives no party a clear majority, and the existing cabinet does not have the confidence of the House of Commons, the democratically elected opposition MPs could try to work together to continue to transact public business with an alternative government, whether by a single party or a formal coalition. If the new government has the support of the House, it should go ahead and govern, saving the country the expense and hassle of an unnecessary election.
"The supporters of all parties may persist in voting for the party they think best. They may refuse to be bullied by a series of elections into voting for anyone else. And they will be right...The politicians will just have to lump it. They have no right to inflict on us the conspicuous waste of a series of general elections just because we elect a Parliament that does not suit them. It is our Parliament, not theirs. They are our servants, not our masters." (Eugene Forsey, "The Problem of 'Minority Government' in Canada")
Sources: "How Canadians Govern Themselves," Library of Parliament, Ottawa,1980.
"Position of the Governor-General if No Party gets a Clear Majority in the Election," unpublished paper, August 15, 1984.
"Mr. King, Parliament, the Constitution and Labour Policy," Canadian Forum, Jan. 1942.
"The Problem of 'Minority Government' in Canada," Freedom and Order, McClelland and Stewart, Toronto, 1974.
(Helen Forsey is a writer and activist based in rural Eastern Ontario and Newfoundland's Avalon Peninsula. Daughter of the late Senator and constitutional expert Eugene Forsey, she has just completed a book on her father's legacy to Canadians.)